Skip to main content

Full text of "Marriage and divorce legislation in Sweden"

See other formats


J^^^™ 




UNIVERSITY OF PENNSYLVANIA 



Marriage and Divorce 

Legislation in 

Sweden 



BY 



JOHAN THORSTEN SELLIN 



A THESIS 

PRESENTED TO THE FACULTY OF THE GRADUATE 

SCHOOL IN PARTIAL FULFILMENT OF THE 

REQUIREMENTS FOR THE DEGREE 

OF DOCTOR OF PHILOSOPHY 

IN SOCIOLOGY 



•.ii, I- 



EXCHANGE 




14 DAY USE 

..^rUSN TO DESK FROM WHICH BORKOWIJD 

LOAN DEPT. 







LD 2lA-60m-3,'65 
(F2336sl0)476B 



General Library . 
University of California 
Berkeley 



A-i 



UNIVERSITY OF PENNSYLVANIA 



Marriage and Divorce 

Legislation in 

Sweden 



BY 



JOHAN THORSTEN/ SELLIN 



A THESIS 

PRESENTED TO THE FACULTY OF THE GRADUATE 

SCHOOL IN PARTIAL FULFILMENT OF THE 

REQUIREMENTS FOR THE DEGREE 

OF DOCTOR OF PHILOSOPHY 

IN SOCIOLOGY 



•I • • '''•.' 



« * • • ^ I 






Copyright 1922 by 

JOHAN ThORSTEN SeLLIN 



V 






^<^'^ 



TABLE OF CONTENTS 

Part I. Marriage and Divorce Legislation in 
Sweden to 1915 

Chapter 1. The Entrance into Marriage Page 7 

Chapter 2. The Dissolution of the Marriage Page 32 

Chapter 3. The Legal Status of the Wife Page 40 

Part IL The New Marriage Law. 

Chapter 4. The Entrance into Marriage Page 53 

Chapter 5. Tlie Dissolution of the Marriage Page 74 

Chapter 6. The Legal Status of the Wife Page 86 

Part III. The Social Significance of the New 
Marriage Law. 

Chapter 7. The Social Significance of the New 

Marriage Law Page 101 

Bibliography Page 1 19 

Appendix. The Marriage Act of 1920 Page 121 




5003iKi 



PART ONE 



Marriage and Divorce Legislation 
in Sweden to 1915 



CHAPTER ONE 

THE ENTRANCE INTO MARRIAGE 

Betrothal ^^^^ng peoples of Teutonic origin marriage was 
originally a family affair, arranged betweeen the 
guardian of the woman and her suitor. She herself 
had no legal power to choose her future husband but 
had to submit to the judgment of her relatives. The Chris- 
tian Church, -with its conception of marriage as a union based 
on mutual agreement, vigorously opposed this procedure and 
succeeded in imposing its ideals on the nations it conquered. 
In its desire to supervise the private life of its members, the 
Church gradually gained control of the entire marriage cer- 
emony. At first satisfied to bless the union after the civil 
marriage had taken place, it soon demanded that the ceremony 
be performed before the church door and in the presence of 
the priest ; it was, then, only a matter of time until the 
ceremony was shifted to the church proper. The importance 
of ecclesiastical control of the marriage became still greater 
when marriage was made a sacrament. Complete power 
over the ceremony and its prerequisites was placed in the 
ecclesiastical authorities, and the Canon Law, which regu- 
lated this controlling power, received a recognition as uni- 
versal as the Church itself. 

The Canon Law was not entirely uninfluenced by the 
secular concepts of the countries it came to dominate. The 
inevitable conflict between it and the Civil Law, in matters 
affecting both State and Church, left both legal systems 
changed. The civil law betrothal received a place in the 
Canon Law, even though it was considered inferior to the 
ecclesiastical betrothal, which took place immediately be- 
fore the ceremony and provided no betrothal period. The 
Church came to regard the civil law betrothal with a great 
deal of interest because of the very reason that it provided 
an interval, which facilitated the investigation of the disabil- 
ities to marriage.^ 

^Lagberedningens forslag till revision av giftermdlsbalkcn och vissa 
dclar av drvdabalken, I., p. 76. 



g.- J. . * »• r ■ Marriage and Divorce 

Influenced by the teaching-s of the Church, the Civil Law- 
came to demand the woman's consent to the marriage. The 
result was the appearance of the so called "free" marriage, 
the significant feature of which was the absence of the 
guardian. The custom soon arose of having a "chosen guard- 
ian" give the woman away and this guardian was selected 
by the woman. Since the ritual, which had in the course of 
time developed, practically demanded that this person be 
able to read, it is probable that the priest, who used to be 
present to bless the union, was asked to officiate in this new 
capacity. From this it was but a short step to his taking 
charge of the entire ceremony, which resulted in its transfer- 
ence to the interior of the church, a development, which 
seems to have taken place at least in Anglo-Saxon countries. - 

In the Swedish laws of the early Middle Ages, there were 
still traces of a marriage by purchase, which must have been 
common long before. In principle, however, this custom had 
already disappeared by the time the legal concepts took 
definite form in the Provincial Laws.^ These laws held as 
necessary elements of a legal marriage, betrothal and a wed- 
ding, followed by cohabitation. The betrothal ceremony was 
preceded by negotiations of a financial nature. The suitor 
must show that he was able to support his wife and some- 
times he must guarantee this support in the betrothal con- 
tract.* The dowry was also decided upon. It consisted in 
money, land, or personal property given to the woman by her 
father; if the marriage was disrupted, it was to be returned 
to her, her husband controlling it during the marriage. 

^Howard, G. E., A History of Matrimonial Institutions, vol. I, p. 276 
et seq. 

^At the dawn of the historical era, Sweden was divided into a great 
many shires or provinces, "landskap", inhabited by closely related peoples, 
governed by laws of their own making. These popular laws served to 
guide the procedure of the assemblies, where justice was dispensed. Of 
the nine or more Provincial Laws, dating back to the 12th or the 13th cen- 
tury, the Vastgota and Ostgota Laws are the oldest. Increased facilities 
of communication and the unification of the provinces into one kingdom 
made it possible for King Magnus Eriksson, in the middle of the 14th 
century, to appoint a commission to codify the laws into a general law for 
the realm. The result was Magnus Eriksson's Country Law, later fol- 
lowed by his Borough Law. The latter governed the towns; the former, 
the countryside. The Borough Law remained in force until both Town 
and Country got a common code in 1734. The Country Law was, in 1442, 
supplanted by Christopher's Country I.aw. 

^Williams, M. W., Social Scandinavia in the Viking Age, p. 92. 



Legislation in Szveden 9 

The morning gift was also decided upon at this time. It 
was to be given by the man to the woman on the morning 
after the wedding night and usually consisted of money or 
land, sometimes reaching a considerable value. The suitor 
was by law required to bind the bargain by gifts to the 
guardian or other relatives of the woman. These gifts were 
often symbolical in nature and represented the price of the 
transfer of the guardianship of the woman. ^ 

As for the betrothal ceremony proper, it was to be per- 
formed in the presence of witnesses. The father or the 
guardian of the woman placed her hand in that of the groom 
and affianced her to him, and those present declared that 
they had been witnesses to the betrothal. This act had 
serious legal consequences. It gave the man the right to 
have his bethrothed delivered to him when he claimed her. 
If the guardian failed to live up to his agreement, the suitor 
had the right to appeal to the civil authorities for aid. The 
loss of the gifts given to the woman or her relatives and, 
sometimes, a small fine were, however, the only punishment 
for the suitor, if he changed his mind. 

The wedding was the act which signified that the mar- 
riage was completed. According to the Provincial Laws, not 
only a formal ceremony but cohabitation subsequent to such 
ceremony gave rise to a union with full legal status, a con- 
cept which survived long after the law had been changed and 
was recognized even in the code of 1734, which was not dis- 
placed until the law of 191 5 was passed. 

The influence of the Church is reflected in the Provincial 
Laws. By the time of their codification, the "purchase 
money" had already lost its character as such and consisted 
largely of gifts to the woman herself instead of to her guardi- 
an or other relatives.^ Many of these laws also prohibited 
a guardian from arranging a marriage for his daughter or 
ward, without her consent. In 1216, the Church, in an at- 
tempt to control the ever increasing number of clandestine 
marriages, extended to Sweden an order requiring that no 

^Their name, the miindr, is still found in the word iormyndare, guard- 
ian. 

*^The Country and Borough Laws show this influence even stronger, 
specifying no gifts to be made to either the guardian or other relatives 
of the woman. 



10 Marriage and Divorce 

marriage be celebrated by its servants until banns had been 
published. The unions of persons who failed to comply with 
this order were declared illicit; they were not invalid. The 
Provincial Laws seem to have taken this order into account, 
since many of them stipulate publication without making 
it obligatory. It was probably regarded as a necessary pre- 
requisite to the religious ceremony, which was mentioned 
in all the laws with the exception of the older Vastgota Law. 
The practise of the Church undoubtedly became accepted 
until most people had banns published and a religious cer- 
emony performed. 

rp. The Reformation, which received official 

. sanction in 1527, had but a slight effect on 

Reformation marriage legislation. The problem of 

clandestine marriages had made Luther emphasize the im- 
portance of ecclesiastical betrothal as the only true betrothal ; 
it should lead to an immediate marriage and should not be 
entered into without the consent of the parents of the candi- 
dates. He believed that all secret betrothals should be re- 
garded as invalid, except possibly in cases when physical 
union had taken place. The reformers, on the other hand, 
did not claim that a religious ceremony was absolutely neces- 
sary for the consummation of a valid marriage. Of course, 
the true Christian should take care that his marriage was 
duly published and entered into at the church door and at 
the altar, but these were not legal rules, only recommenda- 
tions and therefore unenforceable. It was, consequently, the 
betrothal, which came to be regarded as the true marriage 
by the Evangelical churches, a union, which only received 
its confirmation by a religious ceremony, a concept quite 
in harmony with the opinion expressed by Luther that, "This 
is a marriage ; I am yours and you are mine."^ 

As far as the institution of marriage is concerned, the 
new faith received its first expression in Sweden in the Or- 
dinance of Vasteras, 1527. This Ordinance read in parts: 
"If a man cohabits with his betrothed, he shall not be fined, 
since there is between them a right marriage before God, 
neither shall he divorce her. Should he desert her, the law 
shall punish him."® The Church Constitution of 1572 con- 

'Quoted by LagberedningeHS forslag etc., I, p. 79. 
^Ibid., p. 80. 



Legislation in Szvcdcn 11 

tained a similar stipulation. "Where betrothal has taken 
place in the presence of witnesses and with gifts, and physic- 
al union follows, this shall be regarded as right and proper 
before God, although legal (i. e. ecclesiastical) betrothal and 
a religious ceremony have not followed.""* What a remark- 
able likeness between this post-Reformation attitude and 
that expressed in the old civil laws, which regarded betrothal 
and subsequent cohabitation as the only absolutely necessary 
elements of a valid marriage. The following extract from 
the Constitution may also be of interest because it reflects 
the attitude of the Reformers : "No secret contract of mar- 
riage shall be valid, in the case of a girl, who betroths her- 
self without the consent of her parents or guardian, unless 
they are later willing to recognize the betrothal, an action 
which peradventure must follow, if cohabitation has taken 
place; for children are, according to the command of God, 
subject to their parents in this as in all matters. However, 
parents and guardians shall not, in this or other matters, act 
with force or compulsion, for rarely does a good marriage 
result, when one is forced to take some one for whom neither 
love nor desire exists."^" 

The Church Constitution also tried to carry out the 
recommendations of the Reformers by attempting to sub- 
stitute for the old civil betrothal an ecclesiastical one. The 
latter was to take place at the church door or in the vestry 
just before the religious ceremony was celebrated and was 
to replace the old fashioned custom of repeating the betrothal 
vows at the church door, in the presence of the priest.^^ The 
Constitution was frankly contemptuous of "betrothals that 
farmers make"'- and stressed the importance of the ecclesias- 
tical betrothal, which should be entered into regardless of 
the former. This attempt to change the practise of centuries 
failed and, in 1611, the clergy capitulated. Agreeing that 
the civil betrothal was to be considered valid, they simply 
advised all to have their betrothals executed in church before 
the congregation.^^ 

■•>Jbid. 

^ybid., pp. 80-81. 

^See page 30. 

^^Lacjberedningens forslag etc., I, p. 81. 

^mid, p. 82. 



12 Marriage and Divorce 

The influence of the Reformation left prac- 
TJic hcclesiastical tj^ally no trace in the Ecclesiastical Law 
Lazi' of 1686. °^ 1686. Almost the only evidence of it 

was an order to the ministers to warn all 
people of the dangers of entering "conditional or lengthy 
betrothals." The law contained no rule regarding ministerial 
assistance at the betrothal but admonished the people to in- 
form the minister about it in good season that he might 
"warn them of disabilities, which might be obstacles in their 
way."^* Luther's emphasis on parental consent is reflected 
in the stipulation that not only the woman but also the man 
should have the consent of "those concerned" before the 
betrothal be entered into. Refusal to give such consent 
could be tested and set aside by the court, if not justified. 

As to the form of the betrothal, the law required that it 
be executed only in the presence of "two honest and responsi- 
ble male witnesses, one for each side, in addition to the par- 
ents or the guardian. "^^ It was considered performed when 

"both say yes, without force or fear, and shake hands 

even though there be no gifts given. "^"^ It had the nature of 
a contract of marriage, equally binding the man and the 
woman. The consummation of the marriage by a religious 
ceremony was, of course, expected, and the law warned the 
betrothed against a premature cohabitation. But.... a legal 
and valid marriage could be entered into without this cer- 
emony. Physical union, subsequent to the betrothal, was re- 
garded as establishing a marriage, which should be complet- 
ed by a religious ceremony, but the validity of which was 
in no way impaired because the candidates failed to ask the 
Church to bless the union. If, in such cases, the man re- 

^^Ibid. Although the law seems to have required witnesses for a 
valid betrothal, practise came to hold written and even secretly performed 
betrothals valid, judging from the following Royal Resolution of Oct. 22, 
1723. "Betrothals, which take place after fair and mature thought and the 
consent of those concerned and not from fear or force, nor due to drunk- 
enness, frivolity, or such things, should not be regarded as incomplete, 
because no witnesses were present. Personal admission and written dec- 
larations, which have been prompted as above mentioned, should be as 
valid testimony as legal witnesses." Ibid., pp. 83-84. 

^^Ibid., p. 84. Cf Williams, M. W., op. cit., p. 94. "Betrothal 

was of the utmost importance, for no marriage was considered legal un- 
less preceded by a formally witnessed agreement regarding the dower and 
the mundr, in addition to a plighting of troth." 



Legislation in Szvcdcn 13 

fused to grant the woman's wish to have a ceremony per- 
formed, the diocesan chapter^' could declare her his wife. 
Should he be dissatisfied with this action, he could appeal to 
the civil courts. 

There was another type of union, which had as great legal 
force as the betrothal, namely, cohabitation after promise of 
marriage. "If a man tempt a girl to cohabit with him after 
promising to marry her, he shall, according to God's com- 
mand^**, be duty bound to marry her and not desert her. If 
he deny the promise and cannot be persuaded, he shall be 
referred to the civil courts, there to free himself. If he ad- 
mit his promise, yet desert her, she shall enjoy the same 
rights as a betrothed woman and he shall be punished as 
one, who without cause forsakes his betrothed. But, if he 
has not reached majority, being under the tutelage of par- 
ents or guardian, he shall not be forced to the marriage 
without his parents' consent."^** The usual, though by no 
means the only interpretation of this paragraph, seems to 
have granted the woman the right to have the marriage 
completed by a religious ceremony. Refusal by the man to 
comply with her wish, caused her to be declared his wife ; 
he might even be given a prison sentence. 
The Civil Code According to the Code of 1734, a betrothal 
r -ty^A could take place in two ways; either by 

•^ oral agreement in the presence of witnesses, 

two on the woman's side and two on the man's ; or, in writ- 
ing, by contract, signed by the man and the woman, or by 
separately written promises duly exchanged. 

In the very first chapter of the law, we find the stipulation 
that "if a man desire to establish a household, he shall ask 
the woman's guardian for her and not forcibly take her nor 
secretly entice her away."-'* In spite of this, the betrothal 

I'ln conjunction with the Bishop, these chapters conduct the reHgious 
affairs of their respective dioceses. They are composed of the dean of 
the cathedral parish and the majority of the professorial lecturers at the 
state college of the cathedral town. (In Uppsala and Lund, the university 
professors of theolog}^ take the place of the "lectors", and in Gothenburg, 
two rectors of the city churches are members, in addition). Although 
Stockholm belongs to the Archdiocese, it has a chapter of its own, headed 
by the rector of "Storkyrkan", who bears the title of "pastor primarius". 
The Court and Garrison parishes have, besides, a chapter of their own. 

^^Exodics, 22:16; Deuteronomy, 22:28-9, 

^^Lagheredningens for slag etc., I, p. 87. 

''\Sveriges Rikcs Lag. Giftenndlsbalken, chapter i, paragraph i. 



14 Marriage and Divorce 

seems to have been largely a matter of mutual agreement, 
properly witnessed. The Code appears to have been inspired 
to some extent by the old Provincial Laws. The number of 
witnesses, which the Ecclesiastical Code placed at two, was 
doubled in accordance with the old civil law stipulation.-' 
Again, the suitor was urged to give the guardian due notice 
of the time of the wedding. Refusal of the latter to deliver 
the bride, gave the bridegroom a right to ask the civil author- 
ities for assistance. All of which indicates that, in form if 
not in spirit, the Code revived the old Teutonic betrothal 
in which the woman played a passive role. 

The Canon law concept of free mutual agreement was also 
recognized. \'alidity was given to betrothal by a written 
contract, signed by the candidates, or by written promises. 
Secrecy, however, was not favored. Mere promises of mar- 
riage or secret agreements were not considered binding un- 
less they were followed by cohabitation, and even then a 
religious ceremony should complete the marriage. If pub- 
lication of banns had been applied for, secret agreements 
were recognized and a betrothal was looked upon as ex- 
isting although the time and the manner of its actual begin- 
ning were unknown. 

The importance of the betrothal lay primarily in the fact 
that it formed an efifective bar to another union and had to 
be dissolved in a specific manner. If both the man and the 
woman desired its dissolution, they could apply to the di- 
ocesan chapter, which prom])tly granted their wishes. But, 
if only one of them desired it, court action became neces- 
sary. Should the court, in its investigation of the causes 
for the petition, find that the petitioner was chiefly to blame, 
the dissolution of the betrothal would be decreed but the 
court might at the same time prohibit the petitioner to marry 
as long as the other lived, remained unmarried, or remained 
unreconciled.-- This prohibition became of little or no value, 
since the legal rights of the injured betrothed were rarely 
exercised. 

With the law of 1734 the religious ceremony came into 

2i"Now a man wishes to bind a woman's troth ; then shall her 
guardian be with her and four witnesses, two on the man's and two on 
the woman's side. A betrothal is then legal." Quoted by Lagberedning- 
ens for slag etc., I, p. 91. 

'^id., p. 95 



Legislation in Sivcdcn 15 

its own. No marriage with full legal status was recognized 
unless it was blessed by the Church.-^ There were, however, 
unions still formed without that blessing, unions based on 
the old custom, which regarded betrothal as the only cer- 
emony necessary for a legal marriage. The drafters of the 
Code faced the task of fixing the status of these unions, 
which were no longer considered proper. They found it 
necessary to create a kind of inferior marriage, an "incomplete 
marriage", a rather curious institution, which has no exact 
counterpart in modern laws. 

An incomplete marriage arose, when physical union fol- 
lowed upon a betrothal or a promise of marriage. "If the 
agreement had the nature of a betrothal, a marriage existed 
as soon as physical union had taken place, even though the 
legal effects were materially strengthened, in case one of 
the betrothed asked the court to be declared the other's hus- 
band or wife, if the latter was unwilling to have a religious 
ceremony performed. Cohabitation after a promise of mar- 
riage gave rise to an incomplete marriage only if the union, 
on the woman's petition, was given legal status by court 
decree, or if the man 'churched'''* the woman as his wife or 
betrothed."-^ There were, consequently, four distinct types 
of incomplete marriages. As far as the woman was concern- 
ed, the important effect of this kind of union was that she 
gained marital property rights in the man's estate. 

Court practise differed greatly with regards to unions 
arising from cohabitation after promise of marriage. Gradu- 
ally the custom arose of declaring the promise binding and 
giving the woman marital property rights in the man's prop- 
erty, instead of declaring her his wife. This arrangement 
was not satisfactory to the clergy, since it did not force a 

-Hi is interesting to note that although the ceremony had now be- 
come the legal foundation for a marriage, thereby displacing the betrothal, 
the latter nevertheless formed a bar to another marriage. 

2*A ceremony, the origin of which goes back to the days of purifica- 
tion mentioned in Leviticus. The teachers of the Church held that a 
woman, who had given birth to a child, should remain at home for six 
weeks and then appear in church to give thanks to the Lord. This custom 
gained in force in the Christian Church and gave rise to the "churching." 
The Ecclesiastical Law of 1686 prescribed a six-week period, which was, 
by Royal proclamation of 1866, cut to four weeks "or earlier". Refusal 
by the woman to follow this rule led to her being requested by her pastor 
to comply with the demands of good Christian order and custom. In 
practise she was given free decision. Nordisk Familjebok, article on 
Kyrkotagning. 

25Ekeberg, B., Aktcuskapslagstiftningcn, p. 11. 



16 Marriage and Divorce 

marriage. In 1755 a decree was issued, declaring in sub- 
stance that, when the court had pronounced the promise 
binding and the couple could not be induced by their pastor 
to have a religious ceremony performed, they were to be re- 
ported to the diocesan chapter, which warned them not to 
oppose their pastor's wishes. If these warnings failed, the 
matter was to be referred to the court and if no cause could be 
shown why the marriage should not take place, the court 
was to order its performance on pain of imprisonment. If 
this did not succeed in convincing the couple, the diocesan 
chapter was to try again its powers of persuasion and after 
that the government was given an opportunity to solve the 
problem. Its action was not suggested by the decree.-" 

It was not in agreement with the spirit of the age to use 
compulsory means to establish families and in 1810, upon the 
request of the Riksdag, the above decree was revoked. Later 
an order was issued, according to which a couple, which 
refused to have the ceremony performed when the court 
had declared the promise binding, was to be summoned be- 
fore the cathedral chapter and requested to marry. If they 
refused and both desired the dissolution of their betrothal, 
the chapter was to issue a letter of dissolution ; in other 
cases the matter was referred to the King for decision. 
Neither the rights of the woman nor those of the children were 
to 'be affected by the dissolution.-^ 

Like betrothal, all the incomplete marriages formed a 
bar to another marriage and had to be dissolved before the 
latter could take place. Although the original purpose of 
this singular institution was to force the completion of a 
marriage by a religious ceremony, which would sanctify 
the relationship, this purpose was displaced by the aim of 
securing economic protection for the injured person, usually 
the woman. "According to the letter of the law. these 

unions were real marriages, but in reality they filled 

functions quite different from those of forming the legal 
basis for marital life. Their real purpose was to pro- 
vide opportunity for redress for the one, who had been de- 
serted by her (or his) lover, although the relationship had 
become highly intimate."-* 

^^Lagberedningcns forslag etc., I, p. loi. 
^''Ihid., p. 102. 
^^Ibid., pp. Iio-lil. 



Legislation in Sweden 17 

Impediments to '^^ ^^^^^ *^^ welfare of the group all peo- 
. pies have found it necessary to regulate 

arn ge. ^.j^^ entrance into marriage for the purpose 

of eliminating those, who might by their union harm the 
group. Among primitive peoples, relationship, either actual 
or fictitious, has always proved an important bar to marriage 
and the Canon Law, which contained the legal concepts of 
the Church Fathers and their successors, forbade the mar- 
riage of persons physically related to the seventh degree, as 
well as those spiritually related, such as godfather and god- 
child, baptizer and baptized, etc. Marriages between those 
in holy orders or under solemn vows, as well as marriages 
between Christians and unbelievers were held void by the 
Canon Law, which also considered adultery, adoption, and 
alifinity impediments to marriage. 
. The Ecclesiastical Law of 1686 prohibited 

^ ■ the marriage of person below legal and 

mature age, but this age was not stipulated nor had any 
previous law settled it. It is to be presumed that the man's 
age of majority, fifteen, was meant. The Commission, which 
drafted the law of 1734, planned to raise this age. The various 
preliminary drafts contained suggestions of placing it at 
eighteen or twenty-one, the marriageable age and the age of 
majority being made to coincide each time. In 1721, a Royal 
proclamation placed the man's age of majority at twenty-one 
and this age was incorporated in the law of 1734, although an 
earlier marriage could be permitted by Royal dispensation.^** 
In 1853, the Riksdag made an attempt to have the man's mar- 
riageable age raised to twenty-five. It failed on the argu- 
ment that his marriageable age would then be much higher 
than his age of majority, an undesirable feature.^** In 1892, 
the woman's marriageable age was raised from fifteen to 
seventeen.^^ Strange to say, the inconsistency, which the 

29During the decades immediately following the passage of the law, 
several changes were made to permit the sons of the peasants to marry at 
an earlier age without dispensation, but in 1841 the law was restored to 
its original form in this respect. 

^^Lagberedningens forslag etc., I, p. 134. 

^^The female Laplanders were not included in this act and could 
therefore marry at fifteen. The failure to raise their age as well seems 
not to have been based on any belief that they reached maturity earlier, 
but simply on the fact that the conditions of life among these nomads 
made a lower age desirable. In 1745, the male Laplanders received per- 
mission to marry at seventeen. Today there are about seven thousand 
Laplanders in Sweden. Ibid., pp. 139-140. 



18 Marriage and Divorce 

Riksdag of 1853 fought, of having the man's age of major- 
ity and his marriageable age differ, did not arouse any criti- 
cism, when the woman's marriageable age remained at seven- 
teen, while her age of majority was placed higher. 

„ ,. , . The position of the guardian in early Scan- 

Luaramnslup. ,• • • ^ i 1 11 'r 

' dinavian society has already been discuss- 

ed. It was he who disposed of his daughter's or ward's hand 
to her suitor and although the woman was later given power 
of independent choice, the guardian remained her representa- 
tive. It is true that the law of 1734 required the man, who 
wished "to establish a household," to ask "the woman's 
guardian for her." but it also stipulated that her consent was 
necessary. The place of the guardian came to be less im- 
portant, particularly after 1858, when an unmarried woman 
became independent at twenty-five. Below that age, she must 
have her guardian's consent, however, a situation, which 
might easily be made difficult, due to the artificial "order of 
guardianship", which preserved within the male line of the 
family the right to give the woman in marriage. As a result 
the deciding power often came to rest in the hands of distant, 
sometimes unknown relatives."" 

pi • ] J The law of 1734 contained no express stipu- 

... , .. lation against the marriage of persons af- 

fected with certain diseases or defects. In 
its discussion of betrothal, however, it gave 
some intimation of its attitude toward such unions. As causes 
for the dissolution of betrothals, the law restated the para- 
graphs of the Ecclesiastical Law, which permitted such dis- 
solution on account of "incurable and infectious diseases, from 

32"A father shall give away his daughter in marriage, and her mother 
may give him advice in the matter. If her father is dead, her mother 
shall take counsel with her blood relations. If neither father nor mother 
is living, the guardian appointed by her father, either orally or in writing, 
or the one appointed by her mother in counsel with her relatives, shall 
give her away. . . If they are not found, the following shall give her away, 
in the order given: full brother; paternal half brother; maternal half 
brother; all of these shall take the advice of her grandfathers. If neither 
full nor half brother lives, then parental grandfather; maternal grand- 
father; paternal uncle; or, maternal uncle. If they are not found, then 
the one closest related to her on her father's or mother's side. Are the\' 
equally close to her in relationship, he who is related to her on her 
father's side, man and not woman, shall give her away, after having taken 
counsel with her trustee and her nearest relatives on her mother's side. 
If no male relatives are living, her trustee shall give her away." Para- 
graphs 2 and 3, chapter i, Giftcrmdlsbalken, Svcriges Rikcs Lag. 



Legislation in Sivcden 19 

which one of the betrothed suffered before the betrothal or 
later acquired, such as leprosy, epilepsy, 'senselessness', 
frenzy, pocks from loose living, and horrible and great defects 
and blemishes, which would keep a person from working at 
his trade or occupation. "^^ The Ecclesiastical Law also stated 
that if, in spite of such disease or defect, the betrothed desired 
to remain together, permission should be given them to do so 
"except in the case of infectious diseases, when a sufficient 
time shall be set, during which attempts shall be made to 
cure the disease.""* If no cure resulted, the betrothal was 
to be dissolved. Incurable infectious diseases, consequently, 
were an unconditional impediment to the marriage of the dis- 
eased person, according to the Ecclesiastical Law of 1686. 

Although it enumerated the same defects and diseases as 
the Ecclesiastical Law, the Code of 1734 contained no explicit 
stipulation regarding the dissolution of a betrothal against 
the wish of the betrothed. The result was confusion until a 
Royal letter of 1757 interpreted the Ecclesiastical Law in 
response to an inquiry, which called attention to the fact that 
although epilepsy caused the dissolution of a betrothal, if 
either candidate admitted the existence of the disease, the 
law did not make clear if marriage between epileptics was 
possible, if they both desired it. The letter instructed the 
clergy "to inform the city or district physician of the matter 
before publication of banns takes place and to give him all 
the circumstances, which, according to the nature of the dis- 
ease, are known or can be ascertained from the diseased per- 
son's parents, relatives, or acquaintances in town or parish, 
so that the physician in question, after having sent this in- 
formation and his own opinion to the collegium medicmn^'^ 
for ratification, can issue a reliable certificate, to be presented 
to the clergy, that the epilepsy is not of 'the right kind', or 
epilepsia idiopathica, in which case alone the person can not 
be allowed to marry. "^*^ The letter seemed to be prompted by 
a true desire for a eugenic reform, which would prevent the 
propagation of those suffering from "the right kind of epi- 
lepsy." It pointed out that this kind "should not be con- 
founded with the so called epilepsia sympathica, or convul- 

^^•Lagheredningens forslag etc., I, p. 154. 

3'The Royal Aledical Board. 

^^Quoted in Lagberedningens forslag etc., I, p. 172. 



20 Marriage and Divorce 

sions and twitchings, which often look like epilepsy, though 
due to other causes. It can be distinguished by good physi- 
cians and cured and cannot, therefore, be transplanted to 
children or form an impediment to marriage." 

Epilepsy was not the only sickness, which came to be 
regarded as an impediment. The Instructions to the Royal 
Medical Board, in 1797, stated that when the Board was con- 
sulted regarding the nature of "inherited" infectious diseases 
and their effect on marriage, such inquiries should be an- 
swered with the idea in mind of saving the nation from the 
curse of incurable diseases. In practice, however, idiopathic 
epilepsy alone constituted an impediment to marriage, aside 
from such psychic ailments, which generally affected a per- 
son's ability to make valid contracts. 

From 1904 on, an increasing realizaton of the importance 
of public health caused several attempts to be made to pre- 
vent the marriage of persons suffering from venereal disease, 
in its infectious stage at least. During the session of the 
Riksdag in 1904, a motion was made to institute a compulsory 
medical examination for all candidates for marriage and, in 
addition, require affidavits from two trustworthy friends as 
to the general health of the candidates. No action resulted. 
Again in 1908, a motion proposed that an investigation be 
made with a view of ascertaining the advisability of requiring 
a general medical certificate of a physical examination made 
shortly before the certificate was presented and of prohibiting 
the marriage of persons afflicted with, or in certain stages of, a 
disease, particularly insanity and venereal diseases. The 
Legislative Committee at that time held that such legislation 
would infringe on personal liberty and would not be sup- 
ported by public opinion. Another reason advanced was 
purely opportunistic. It was feared that the low marriage 
rate would drop still lower if such an examination were made 
compulsory. The suggestion was made that education in 
public hygiene would be much more likely to increase a feel- 
ing of responsibility and a voluntary desire for medical as- 
sistance, and that the only direct result of such a law would 
be that "the individuals, against whom the law was directed, 
would keep on infecting others, with the only difference that 
it would occur outside instead of within the marriage rela- 
tion; the children thus brought into the world would be ex- 



Legislation in Su'cdcn 21 

posed to greater suffering and neglect than if they were born 
of legitimate unions."^" 

r> . . . Certain blood ties have always constituted 

'^ bars to marriage, although there has been a 

steady trend toward minimizing their importance. Most peo- 
ples have had prohibitions against unions between persons 
in lineal ascent or descent. In Christian society this prohibi- 
tion reached its height when the Canon Law. during its great- 
est period, extended it to include members of collateral lines 
to and including the seventh degree. Not only physical rela- 
tionship but also a spiritual one, arising from baptism, con- 
firmation, etc., was held to be an impediment by the Canon 
Law. The severity of these rules was finally recognized and 
in 121 5 the Lateran Council reduced the physical kinship re- 
strictions to include the fourth degree, which made it im- 
possible for two persons to marry, if their great grandparents 
were children of the same father or mother or both. 

In Sweden, the above decision by the Lateran Council 
seems not to have been applied for some reason or other. In 
the Church Constitution of 1572 we still find marriages pro- 
hibited "within the fifth generation." Due to laxity of en- 
forcement and a changing public opinion, a decree of 1680 
declared that only marriages between cousins were to be pro- 
hibited. The King also reserved to himself the right to issue 
dispensation even for such union. It is this point of view 
which the Code of 1734 reflects. In 1845, ^ Royal proclama- 
tion declared marriages of cousins permissible without dis- 
pensation, leaving as the only bar, up to the present law, the 
relationship between aunt and nephew, uncle and niece. 
Lineal ascent or descent has always proved an impediment to 
marriage. 

Since the Church held that physical union made of man 
and woman one flesh, not marriage alone but cohabitation also 
gave rise to a relationship, which created all the various im- 
pediments that a regular union created. These impediments 
extended just as far for one of the cohabitants as the impedi- 
ments of blood relationship did for the other. Even an im- 
pediment in the second and third degree was recognized.^^ 

3'^Quoted by Ibid., p. 159. 

38A man could not, for instance, if his wife died, marry any woman 
relative of his wife's former husband or any woman related by marriage 
to the latter. 



22 Marriage and Divorce 

The Code of 1734 somewhat modified these Canon Law regu- 
lations by abolishing the third degree relationship just men- 
tioned. A decree of 1872 simplified matters still further by- 
recognizing as the sole impediment of affinity relationship by 
marriage in lineal ascent or descent, i. e. first degree relation- 
ships. The Code of 1734 contained a rather curious prohibi- 
tion based on this spiritual relationship, the so called ''con- 
fusio graduum", which forbade "the son, so long as his father 
lived, to marry a woman, whose daughter was or is his father's 
wife." 

TT J. , , Although the Criminal Law, in its seven- 

teenth chapter, provided punishment for 
Marriage. bigamy, neither the Code of 1734 nor any 

other law expressly prohibited it. 

Period of According to the Code of 1734. a widower 

could not remarry for a period of six months 
Mourning. ^^^^^ ^^^ ^^^^j^ ^^ j^j^ ^^.j^-^. ^^^ ^j^^ widow 

the period lasted a whole year. The sentiment which prompt- 
ed this stipulation was expressed in the Ecclesiastical Law. 
which ruled that "a widow should mourn her deceased hus- 
band one year ; a widower, his wife at least half a year."^^ For 
the woman the waiting period served still another purpose, 
that of assuring paternity by forbidding a second marriage un- 
til a child by her former husband could be born. 
Assignment of ^he Code of 1734 forbade a widow or wid- 

ower to remarry until the heirs of the de- 

n leri ance. ceased spouse had been given their respec- 

tive shares of his estate. A Royal decree of 1818 warned the 
ministers not to perform a ceremony until documentary evi- 
dence was produced, showing that the estate had been prop- 
erly divided. The Code did present one way out of the diffi- 
culty. If the matter promised to be the subject of litigation, 
the court could permit the person involved to place security 
for the amount in question. This done, the marriage could 
be performed. 

., J Marriage between persons, who had had 

^' adulterous relationship with each other, was 

prohibited by the Code of 1734. The dissolution of a mar- 
riage, on account of adultery, freed only the innocent spouse ; 
the guilty one could not remarry without the other's permis- 

^^Laghcredningens forslag etc., I, p. 208. 



Legislation in Sivedcn 23 

sion in addition to that of the King^. The death or the re- 
marriage of the innocent spouse freed him, of course, but even 
then he could not marry the person with whom the adultery 
had been committed. In this fashion the law attempted to 
safeguard the life of the innocent spouse.'*" 

r , • . The Swedish law has known no uncon- 

Impnsonment. ,. . , , ., • • • , . r 

ditional prohibition against the marriage of 

persons serving prison sentences or awaiting execution. As 
a rule, however, such marriages have not been permitted. 
Publication When the Church began to exercise full 

control over the marriage institution, it 
^" ^* was necessary to take steps that would 

successfully exclude prohibited marriages. It was, there- 
fore, necessary for the ministers of the Church to investigate 
each individual's qualifications for marriage. As an aid to 
this investigation it became customary to publish a notice 
of the intended marriage with a request that information re- 
garding possible impediments be lodged with the minister. 
This practise was given legal sanction in Sweden by a Papal 
letter of April 5, 1216, which made publication a necessary 
prerequisite to a religious ceremony. In addition, the let- 
ter contained definite instructions to the clergy regarding the 
scope of the investigation and the method of procedure. 

The preliminaries to the publication, as developed up to 
the law of 191 5, were as follows. If a couple desired to have 
their marriage consummated by a ceremony, they must first 
secure the publication of banns by personal application to 
the rector of the parish where the woman was registered. 
He, then, searched the parish records for possible impedi- 
ments, aided in some cases by documentary evidence brought 
by the betrothed, such as affidavits regarding the condition 
of the estate, if the applicant had been previously married. 
Failure to find any impediments in the parish records, made 
it incumbent upon the minister to issue banns, which were 
published the following three Sundays from the pulpit of 
the parish church, immediately after the sermon. If any 
one knew of an impediment to the marriage, information was 
to be given to the minister, in the presence of two witnesses. 
The informant was also to place security for all damages 
and costs, which he might incur as a result of court action, 



*^Ibid., pp. 221-222. 



24 Marriage and Divorce 

which was assured, since the informant had to swear out a 
complaint against the offender. If the court failed to see 
the justice of the protest, the informant was fined and had 
to pay the costs, which, of course, discouraged all protests 
born of malice or spite. Usually the information was lodged 
because the coming marriage infringed upon some one's pri- 
vate rights, such as the right of a woman to be declared the 
wife of the man, in case he had cohabited with her after 
promise of marriage. If the matter was taken to court, the 
minister could do nothing but await the result. He could 
neither issue a certificate of publication nor perform a mar- 
riage until the candidates could present proof that the im- 
pediment had been removed. A judicial settlement, however, 
was of rare occurrence and usually the minister was able 
to arrange the matter amicably without recourse to the civil 
authorities. 

After the publication had been completed, the minister was 
again supposed to inquire into the matter of disabilities and, 
if he found none, issue to the betrothed a certificate of pub- 
lication, which gave them the right to have a ceremony per- 
formed. The certificate stated that publication in due form 
had taken place and that no impediments to the marriage 
existed. 

Since the certificate was issued in the parish where the 
woman was registered, it was necessary for the minister to 
know the man's qualifications, should he happen to live in 
some other parish. The law, therefore, required the man 
to bring a transcript of the records of his parish, issued by 
its rector, and containing information as to his name, ad- 
dress, occujDation, age, other circumstances affecting his 
right to have a religious ceremony performed, and a record 
of previous marriages with the dates and causes of their 
dissolution. Finally, the transcript had to contain a declara- 
tion that its possessor was free to marry. This document 
had to be presented to the minister to whom the applica- 
tion for publication Avas made. If the man was unknown, a 
foreigner, for instance, he had a thorny path to travel. The 
Ecclesiastical Law of 1686 ruled that if an unknown man 
applied for publication, he must present to the minister oral 
or written testimony by trustworthy men, vouching for his 
life and circumstances. This rule was made still more rigor- 
ous by a Royal decree in 1791, which declared that if legal 



Legislation in Szveden 25 

proofs of such a person's circumstances did not exist, the 
applicant must insert a notice in the general newspapers of 
the Kingdom, giving a full statement of the case, including 
the name and address of the minister to whom information 
regarding impediments should be sent. If no information 
was received by the latter within a year, he was free to act.*^ 
A modification of this ruling was made in a statute of 1898, 
which declared that "a Swedish man or a Swedish woman, 
who wishes to marry, but cannot, according to the Ecclesias- 
tical Law, prove the absence of disabilities, shall publish his 
intentions in a notice, inserted three times in the general 
newspapers and giving complete information as to his name, 
age, place of birth, places where he has resided, name and 
address of the pastor to whom information regarding impedi- 
ments should be sent, and the time limit for the lodging of 
this information. This time shall not be shorter than six 
months if the applicant has lived outside the Scandinavian 
countries and Finland ; in other cases, not shorter than 
three months from the date of the last notice. If, within 
this time, the minister in question has received no notice 
of impediments, nor discovered any other means he may 
issue banns in due form."*- This act had obvious drawbacks, 
particularly for visiting Swedish-Americans, and in 1910 a 
statute, superseding all previous legislation, stipulated that a 
Swedish man or a Swedish woman, who applies for publica- 
tion, may prove ability to do so by a certificate from a min- 
ister in the Kingdom or one serving a Swedish congregation 
abroad. If this were impossible, freedom to marry might 
be proved ; either by the oral or written testimony of two 
Swedish or alien persons, whose trustworthiness was known 
to the minister that entertained the application, or who had 
been vouched for by the Governor, the district attorney, the 
sheriff, a magistrate, a minister in a Swedish parish, or a 
Swedish legation or counsel ; or, by a certificate from a min- 
ister of a foreign church body, if certificates from that body 
had been declared valid by the King."*^ 

Publication in the usual manner could be dispensed with if 

*^Ibid., p. 245. 

*-Ibid., pp. 245-246. 

*^Ihid., p. 247. A Royal decree of Nov. 10, 191 1, gave validity to cer- 
tificates issued by the Evangelical Lutheran Augustana Synod of North 
America. 



26 Marriage and Divorce 

the man was called to arms against the enemy or was sent 
abroad on some public service. In these cases, all three 
readings could take place on one Sunday or religious holiday, 
although the ceremony could not be legally performed until 
two days later. The Ecclesiastical LaAv provided for a sim- 
ilar publication if one of the betrothed lay on his deathbed, 
and although the Code of 1734 lacked this stipulation, it was 
quite generally practised.** 
TV, TvyTorfJoff^ Some of the Provincial Laws prescribed 

1. lie IVlaFl IH^C . . ^ . 11* 

P the date 01 the weddmg, settmg one year 

after the betrothal The Ostgota and 
Vastgota Laws actually stipulated a legal wedding, day, the 
Sunday following St. ^Martin's (Nov. nth). Late fall was 
much favored throughout Sweden and a preference was 
shown for Tuesdays or Thursdays during new or full moon.*^ 

"On the wedding day the groom journeyed to the bride's 
home and there the transfer of the woman's guardianship 

took place The transfer was accompanied by solemn 

words followed by the drinking of toasts. All took 

place in the presence of relatives and often of the whole 

village To complete the marriage, the journey to the 

groom's home and cohabitation, proved by witnesses***, were 
necessary. On the morning after the wedding night, the 
husband was to give his wife a morning gift, unless he had 
cause to send her back. Originally a small, symbolical gift, 
it often became a large present of land, etc., which she could 
keep as her widow's portion at the man's death, while if she 
died it seems to have remained in the man's possession."*^ 

We have already noticed that the old Provincial Laws 
contained traces of the religious ceremony, which the Church 

**Ibid., p. 272. 

^^Flodstrom, I., Sverges folk, p. 370. "Even today most of the mar- 
riages in Sweden take place in the late fall. Thus the marriage rate for 
1903-1912, per year and thousand of inhabitants, was, for October, 8.84; 
for November, 8.97; for December, 12.30; for January, 2.19; for April, 
6.81 ; for June, 6.92, and other months vary between 3.50 and 5.50." Ibid., 
note. 

*^In Skane, the southernmost province of Sweden, it was customary 
for the bride and groom to undress in the presence of the wedding guests. 
During the wedding night, guests were also supposed to visit the bedroom 
of the couple. These customs survived to the beginning of the nineteenth 
century. See Westermarck, E., The History of Human Marriage, vol. 2, 
P- 437. 

*^Flodstrom, I., op. cii., p. 370. 



Legislation in S^vcdcn 27 

required. This ceremony had to be conducted according to 
the ritual of the State Church, since members of alien, i. e., 
Catholic and non-Christian, faiths did not for a long time 
have the right to establish congregations or retain a clergy. 
On January 24, 1781, however, a Royal decree granted such 
faiths religious freedom, the right to form congregations, 
and the privilege of having marriages performed in accord- 
ance with their respective rituals. This decree was extended 
the following year to members of the Mosaic faith, limited, 
however, to marriages within that faith. Since no mention 
was made of the form of the ceremony to be used by Jews, 
it is presumed that their time-honored ritual was recognized 
as sufficient. The restriction, forbidding the marriage of Jew 
and Gentile, was abolished by a decree of 1863 and at this 
time a civil ceremony made its first appearance in Swedish 
law. Such marriages were to take place before certain civil 
officials, a custom which has since that time been extended 
to include ever greater groups. 

The dissenter law of 1873, regulating marriages between 
members of Christian but non-Lutheran faiths and betv/een 
such persons and members of the State Church, and decrees of 
1880 and 1898 modified the law until the condition before the 
passage of the law of 1908 was as follows : 

a. The civil ceremony was obligatory when one of the 
betrothed was a member of the State Church and the other 
a Jew ; when neither belonged to the State Church or an 
alien faith, to whose clergy the King had given the right to 
perform marriages ; and, when one of the betrothed was a 
member of the State Church, but had not been baptized nor 
had received the Holy Supper within the Church, nor religi- 
ous instruction by a minister of the Chvirch and by him pre- 
pared to receive the sacrament upon confirmation. 

b. The religious ceremony was obligatory, when both 
betrothed were members of the State Church, had been bap- 
tized there, and had received the Holy Supper; and, when 
both belonged to some alien faith, whose clergy had the 
right to perform marriages. 

c. Clioice between the two could be exercised, when one 
of the betrothed belonged to the State Church and the other 
to an alien faith; when both belonged to diflferent alien faiths, 
in one of which the clergy had the right to perform a cere- 
mony ; and, when one was a member of the State Church, hav- 



28 Marriage and Divorce 

ing neither been confinned nor having partaken in the Holy 
Supper in the Church, but, having received religious instruc- 
tion by a minister of the Church, had been found by him 
prepared to receive the sacrament upon confirmation; this, 
of course, on the assumption that he otherwise had a rv^hi 
to have a religious ceremony performed/^ 

These rules were all simplified by the law of 1908, which 
made the civil ceremony elective to all, while reserving the 
religious ceremony for the cases when both betrothed were 
members of the State Church, had received religious instruc- 
tion from a minister of the Church and by him found to be 
prepared to receive the sacrament after confirmation ; and, 
when both belonged to an alien faith with a clergy having 
power to perform marriages. ^'^ The right to a religious cer- 
emony was denied to members of different denominations, 
and even when one of the betrothed was a member of the 
State Church and the other belonged to some foreign Evan- 
gelical Lutheran Church, a rather curious distinction. 

The limitations made in the law of 1908 were largely due 
to the work of the clergy. In 1903, the Synodical Congress, 
in a letter to the King, requested that "steps be taken to 
make such changes in the present marriage law that all 
Swedish citizens, for whom the religious ceremony is now 
obligatory, may be given the right to choose the civil form, 
if they so desire; and, that rules be made at the same time 
so that the Church may not, through its clergy, be called 
upon to celebrate marriages, which would cause good ec- 
clesiastical order and the dignity of the Church to suffer. "^^ 
This question had been raised as early as 1868 by P. P. 
Waldenstrom at the first Synodical Congress. He urged 
that "ecclesiastical publication of banns and a religious cer- 
emony should not be granted to persons, who are unable to 
marry, according to Matt. 19:9."^^ In 1883, the Congress 

*^Lagutskotfets titlatandc nr. 2ii ipoo, pp. 2-3. 

*'''The King granted such power to the Methodist Episcopal Church, 
in 1876; to the New Jerusalem Church, in 1892 and 1893; to the Roman 
Catholic Church, in 1895 ; to the French Reformed Church in Stockholm, 
in 1895; to the Anghcan Church, in 1899; and, to the Rabbis of the Syna- 
gogues in Stockholm, Gothenburg, and Malmo, in 1909. See Laghcrcd- 
ningens forslag etc., /, p. 283, note. 

^*'Lagutskoitets utldtandc nr. 38, 1904, p. 6. 

^^Ibid., nr. 30, 1908, p. 9. 



Legislation in Sweden 29 

wrote the King requesting- legislation to the effect that "a 
marriage which a person, who had voluntarily caused the 
dissolution of his earlier marriage, without being provoked 
by his partner's adultery, desired to enter into during the 
lifetime of his former spouse, should not be published as a 
Christian union, nor be given confirmation by a religious 
ceremony."^- This desire to exclude certain individuals from 
a religious ceremony was best expressed in the above men- 
tioned letter to the King, in 1903. The Synodical Congress 
had entertained a motion asking for legislation, which would 
close the religious ceremony to "persons, whose marriage was 
called adultery by Christ, the Lord of the Church, according 
to Matt. 19:9, Mark 10:11-12, Luke 16:18, and First Corinth. 
7:10, and therefore in opposition to the laws of His King- 
dom; [and, to] those who openly declare that they do 

not believe in the teachings of the Church or in Christian- 
ity."^^ The Congress expressed itself entirely in sympathy 
with the second part of this motion but doubted the advisabil- 
ity of recommending the first part, since it, from the point 
of view of the state, would make the civil ceremony a puni- 
tive measure for the persons in question and would more- 
over establish dual legislation. This letter, together with a 
communication from the Riksdag of 1904, asking for a re- 
vision of the law, finally led to the statute of 1908, 

The -form of ^^ ^° ^^^ form of the ceremony, the Pro- 

vincial Laws contained some provisions. 
the ccre^nony. ^pon the groom's arrival to the house of 
the guardian, feasting began and the groom afterwards call- 
ed upon the guardian to make his "gift-speech" (giftomal, 
now found in the Swedish giftermal, marriage). The latter 
then gave his daughter to the groom with words like these, 
prescribed in the Country Law and the Provincial Law of 
Uppland : "I give you my daughter to be your wife ; I give 
her to your honor and to half of your bed, to lock and keys 
and to one-third of all you own or acquire in the form of chat- 
tels, and to all rights found in the Law of Uppland given by 
Saint Eric ; in the name of the Father, the Son. and the Holy 
Ghost."^" 

The Church rituals of pre-Reformation days in Sweden 

^^Ibid., nr. 38, 1904, p. 3. 
'^Flodstrom, I., ufy. cit., pp. 468-469. 



30 Marriage and Divorce 

showed that the ceremony consisted of two parts, the first of 
which took place at the church door and consisted merely 
of a repetition of the betrothal vows to assure the priest that 
there was mutual agreement to the union ; the bridal mass was 
then read in the church. The ritual of 1529 gave the cere- 
mony a somewhat changed form and in 1614 a new ritual ap- 
peared, containing for the first time an actual declaration of 
consummation by the minister. The ceremony was also, in 
its entirety, transferred to the church proper and was pre- 
ceded by exhortations to the couple, similar to those formerly 
read at the betrothal.^^ 

According to the Code of 1734, the marriage ceremony 
was to be performed by a minister of the Swedish Church. 
If some one, not a minister of this Church, performed it, the 
law suggested that it be followed by a legal, i. e. religious 
ceremony, if the marriage was permissible. Failure to have 
publication made in due order seems not to have invalidated 
the ceremony. Although the law did not specifically pre- 
scribe it, the following omissions have been regarded as 
nullifying the ceremony : failure on the part of one of the 
betrothed to be present, and conditional agreements to marry. 

The celebrant must demand a certificate of publication be- 
fore performing a marriage. If publication had been made 
in due fashion, it was not incumbent upon him to make an 
inquiry regarding impediments, although he had no right to 
perform a ceremony if he knew of a disability, even though 
a certificate of publication may have been issued. The fact, 
however, that the certificate was perpetual made it sometimes 
hazardous to perform a marriage, since disabilities might have 
arisen after the certificate was issued. 

The law of 1908 required the marriage of members of the 
State Church to be "performed by a minister of the Church, 
according to the directions found in the Manual of the 
Church. "^^ The marriage of members of any other church 
organization was to be performed by one of its ministers ac- 
cording to the ritual of that Church. The civil marriage was 
to be performed "in the presence of relatives or other wit- 
nesses. The official shall demand the man's and the woman's 
affirmative consent and declare them husband and wife.^' 

^'■'Lagbcredningcns forslag etc., I, p. 82. 
""Hedren, T., Lagtima riksdagen 1908, p. 92. 
''''Ibid., p. 91. 



Legislation in Sxi.'cdcn 31 

The necessary elements of the ceremony were, therefore, the 
presence of both betrothed before the celebrant, their affirma- 
tive consent, and the declaration making them husband and 
wife. 

After the ceremony it was necessary to register the mar- 
riage in the parish record where publication was made, no 
matter which ceremony had been used. In the case of the 
religious ceremony, this was the only official record made 
of the marriage, but in the case of the civil ceremony, a spe- 
cial record was to be kept by the civil celebrant as well. This 
record was to be signed by witnesses, if the marriage took 
place before a magistrate or the district attorney. The civil 
marriage was, consequently, registered twice.^^ 



CHAPTER TWO 

THE DISSOLUTION OF THE IVIARRIAGE 

. , According: to the Canon Law, the following^ 

Annulment . . * nr i 

omissions or commissions nullined a mar- 
riage : failure to comply with the legal forms in entering the 
marriage ; failure on the part of either candidate to give bind- 
ing consent, due to lack of legal power to act, or due to force, 
deceit, or mistake ; and, failure to respect the Canon Law dis- 
abilities. All such unions were regarded as having never 
taken place, unless the legal forms had been carefully fol- 
lowed, in v/hich case they were voidable and not null ab initio. 
If one or both candidates acted in good faith, the children of 
the union were considered legitimate and the innocent candi- 
date given about the same rights at civil law as if the mar- 
riage had been perfectly valid. 

Early laws in Sweden make no distinction between void 
and voidable marriages. The Church Constitution of 1572, 
in its chapter on Divorce, stated, "In every case, when mar- 
riage is concluded without law or permission, it shall be re- 
garded as invalid or null."^ The Ecclesiastical Code con- 
tained practically nothing to indicate that the principle ex- 
pressed in the Canon Lav.' had been fully understood. Nehr- 
man, in his "Inledning til then swenska jurisprudentiam 
civilem," published in 1729, made a clear distinction, however, 
between annulled marriages and those dissolved by divorce. 
As grounds for annulment he mentioned certain stipulations 
in the Ecclesiastical Law, such as bigamy, impotence exist- 
ing at the time of the marriage, forced marriage, marriage 
deceitfully celebrated, and marriage entered into by mistake 
in regard to the virginity of the bride.- 

The Code of 1734 contained a statement of principle to 
the eflFect that if a minister celebrated a marriage between 



^Lagheredningens forslag etc., I, pp. 309-310. 
^Ibid., p. 310. 



Legislation in Sweden 3v3 

persons not allowed by law to marry, the marriage was void." 
It apparently referred to the impediments caused by relation- 
ship, lack of guardian's consent in some cases, and adulterous 
relations between the candidates. The law explicitly men- 
tioned absolute adultery and since it also mentioned that no 
one could be forced into a marriage, it is natural that a forced 
marriage was regarded as null, particularly since a forced 
betrothal was so considered. 

If a candidate for marriage had an incurable or infectious 
disease, which he deceitfully concealed while "tempting" some 
one to marry him, the marriage was null and void and the 
culprit lost all material property rights in the estate and was 
assessed damages in addition. Of course, only the deceived 
spouse could apply for annulment on this ground, unless the 
other proved that he lacked his full mental powers at the time 
of the marriage. 

Marriage by mistake or through deceit could be annulled 
only if either spouse, during the betrothal, had had sex rela- 
tions with some other person than his bethrothed ; if the ivouian 
had had such relations with some other man before the be- 
trothal; if either spouse was unable to perform the marital 
function* or had an incurable or infectious disease; or, if the 
man had deceived the woman into marrying him by misrep- 
resenting his name or status.^ The children of all annulled 
marriages were regarded as legitimate but the woman was 
not allowed to retain the man's name. 

On the whole, the question of void marriages was never 
definitely settled until the present law was passed. In pre- 
vious laws, the paragraphs dealing with them were not even 
found in the same chapter. The opinion of the Law Commis- 
sion that "the legislation did not appear to have reached any 
consequential or clear attitude in the matter" was indeed justi- 
fied.« 

^All such marriages seem not to have been considered null. Persons, 
who married within the legal period of mourning or before the assignment 
of the inheritance, did not suffer annulment of their marriage. 

*Actual inability was meant, not sterility. 

^Chapter 13, paragraphs 7 and 8, chapter 4, paragraph 6, Gifiermdls- 
balken. Sveriges Rikes Lag. 

^Lagberedningens forslag etc., I, p. 311. 



34 Marriage and Divorce 

c ^. J The individualism, which marked the civil 

Separation and r , t^ i i •. ir • .1 • 

justice of the Romans showed itself in their 

Uivorce. marriage institution. The free marriage, 

which came into common use during the Empire made a 
divorce by mutual agreement possible. The Mosaic Law and 
the older Teutonic laws recognized this privilege for the man 
alone, while later Teutonic laws included the woman as well. 
The Christian Church did not share this point of view. 
iMarriage, being ordained by God. was a sacrament, which 
could not 'be broken. In accordance with the teachings of 
Jesus and St. Paul, it became, however, customary to permit 
separation on the ground of adultery, but the marriage bond 
could not be dissolved except by death. This ideal the Church 
tried to realize in Sweden by a letter from Pope Alexander III 
in 1 161, which pointed out that, "according to God's com- 
mand and the apostolic teachings, a man shall not separate 
from his wife except in case of adultery, and that if he for 
such cause desert her and marry another during her lifetime, 
he shall be regarded as an adulterer."^ It is doubtful if the 
Church succeeded in carrying out this doctrine in Sweden, 
at least during the early Middle Ages. 

The Reformation brought a change of attitude. To the 
Reformers marriage was not a divine institution and there- 
fore not indissoluble. Since Jesus, according to Matthew, 
permitted divorce on the ground of adultery, the reformers 
held that the IMaster Himself did not regard marriage as bind- 
ing for life. They regarded adultery and malicious desertion 
as grounds for divorce and these grounds were found in both 
the Church Constitution of 1572 and the Ecclesiastical Law of 
1686. Jurisdiction was vested in the cathedral chapter, al- 
though the Ecclesiastical Law pointed out that the civil courts 
were to act first by meting out the punishment and determine 
upon the other consequences at civil law. 

In addition to this absolute divorce, the Ecclesiastical Law 
also mentioned a limited divorce or separation for a definite 
time "from l)ed, board, abode, and company." This separa- 
tion constituted the last link in a long chain of events, which 
although commonly practiced had not heretofore been given 
legal sanction. It was preceded by warnings from the rector 
and the cathedral chapter, imprisonment or other punishment 

"Quoted by Ibid., p. 370. 



Legislation in Szveden 35 

imposed by the courts, and, finally, separation, decreed by 
the cathedral chapter, publicly proclaimed in church, and fol- 
lowed by excommunication. These steps were taken in in- 
stances where hatred, bitterness, and anger, had arisen be- 
tween husband and wife ; they were not to be considered a 
substitute or a necessary prerequisite for a divorce. On the 
contrary, separation was a form of punishment designed to 
hasten reconciliation. 

The Code of 1734 reflected about the same point of view. 
It contained only two grounds for divorce, adultery and 
malicious desertion. The courts tested the cases and the 
cathedral chapter, bound by the decision of the court, issued 
the letter of divorce. In case of adultery, the mere admission 
of guilt on the part of the offender was not sufficient ; definite 
proof was required. The petitioner must not have been an 
accessory, nor must he have forgiven the faithlessness of his 
spouse. Express forgiveness was not required, cohabitation 
after learning of the faithless act being interpreted by the 
court as forgiveness. To receive consideration, the petition 
must be presented within six months from the date the peti- 
tioner learned of the fact. In case he himself had been guilty 
of faithlessness, his petition lost its force. Should the inno- 
cent spouse fail to begin action, the district attorney was em- 
powered to do so. 

Desertion was considered a ground for divorce only when 
the deserter, "out of malice and aversion," had left for parts 
unknown or had gone to a known place abroad with no in- 
tention of returning to his family. If he had left for an un- 
known place and divorce had been applied for on that ground, 
the court was instructed to have notices read in the churches 
of the nearby counties and parishes, exhorting the deserter 
to return within a year to appear before the court. Before 
ordering the reading of such notices, however, "the judge 
must have received assurances through the clergy that the 
person in question had really deserted his spouse ; he must 
also have made inquiries as to his whereabouts, the causes 
for his absence, and the tenor of his earlier family life."^ 
Failure to heed the summons of the court caused the divorce 
to be granted. 

«Royal letter of Feb. 4th, 1818. See Sveriges Rikes Lag. Schlyter's 
ed., 1886, p. 17. 



36 Marriage and Divorce 

If the husband left home with the intention of returning, 
yet remained away, the deserted wife could receive permis- 
sion to remarry after six years or earlier, if the court, after 
due investigation, deemed it proper. A divorce, however, 
could not be granted her. The result was that if the absent 
husband returned and gave valid excuse for his absence, 
showing that he was unable to communicate with his wife, he 
could resume his place at her side, while the second husband 
had to leave, unless it was otherwise agreed. Upon with- 
drawal, the latter was free to remarry.* 

As to the treatment of quarrelsome couples, the law pro- 
vided either fines, twice imposed, if husband and wife could 
not live peaceably together after being given warnings ; or, 
separation from bed and board, which was to go into elTect if 
the former punishment failed. 

After the passage of the law of 1734, it became customary 
for the King to grant absolute divorce by dispensation to 
people, who had already been granted separation from bed 
and board. This practise was embodied in law by a decree 
of 1810, which materially enlarged the opportunity for sever- 
ing the bonds of matrimony. It was stipulated that divorce 
could be gained, either by court decision or by Royal dis- 
pensation. Upon the petition of either spouse, the court 
could grant a divorce if the petitioner's spouse had been 
sentenced to life imprisonment or exile, or had been found 
by the court to have plotted or staged an attempt upon the 
petitioner's life ; if he had become insane and had remained 
so uninterruptedly for a period of three years without any 
hope for permanent recovery; or, if he were guilty of adult- 
ery or malicious desertion. The decree did not give, in any 
definite manner, the instances when the King could act. The 
general rule was that an appeal for divorce by dispensation 
might be made "when other causes appear", i. e. for any cause 
deemed sufficient by the King.^" The decree mentioned, 
specifically, the following grounds: a death sentence or per- 
manent loss of civil rights, even though the King may have 
granted a pardon or restored the rights in question; a sen- 

^Sveriges Rikes Lag. Giftcrmalshalkcn, chapter 13, paragraph 6. 

^^'Of course, wherever the King is referred to in this monograph, it 
is to be remembered that his dispensations and decrees etc. are not per- 
sonal, but decided by some government department or official and 
issued as an administrative order. 



Legislation in Szvcden 37 

tence for some brutal or deeply dishonoring crime; a sentence 
to penal servitude for a certain number of years; wasteful- 
ness; drunkenness; violent temper; and, a difference in tem- 
perament and opinion, which, after numerous eruptions, grad- 
ually turns into disgust and hatred. " With the exception of 
the first of these grounds, a Royal dispensation did not lead 
to an immediate divorce, unless all the various degrees of 
warnings mentioned in the Ecclesiastical Law had been em- 
ployed. Important is the fact that the old concept of guilt, 
as necessary for a divorce, had partially disappeared. In 
many cases, mutual feelings of hatred implied no guilt on 
the part of either spouse, nor did insanity. 

A decree of i860 greatly modified the procedure in re- 
spect to "quarrelsome couples". Such couples were to be 
warned by the rector of their parish, either when he learned 
of their disagreements or when they petitioned him. If his 
warnings carried no weight with them, they were summoned 
to appear before the deacons. Should this have no effect 
on their relationship, the court was to grant a year's separa- 
tion from bed and board. If found desirable, the court could 
at the same time, on pain of imprisonment, forbid any com- 
munication between the spouses during this period.^- 

Separation from bed and board did not mean a division 
of the property. In each separate case, the court determined 
what action should be taken in regard to the joint property 
and to what extent mutual support should be granted. The 
disposal of the children was also effected by the court. Di- 
vorce, on the other hand, gave to each spouse the right to 
withdraw his private property, while the joint property was 
shared according to their respective marital property rights. 
There were some exceptions to this rule. In case of adult- 
ery, for instance, the guilty spouse lost half of his marital 
property to the other and in case of desertion or when one 
plotted the other's destruction, the innocent spouse had a 
right to all the property. No duty existed on the part of 
either spouse to support the other after the divorce had been 
decreed, except when insanity had formed the ground for the 
divorce, in which case the petitioner was duty bound to con- 
tribute, in part at least, to the support of the insane spouse. 

•^See Svcrigcs Rikcs Lag. Schlyter's ed., 1886, p. 18. 
^-Ibid. Giftermdlsbalken, chapter 14, paragraph i. 



38 Marriage and Divorce 

In all cases, the court determined the disposal of the chil- 
dren. 

To summarize, then, separation was granted only in case 
the family life had become intolerable due to a growing ill 
feeling between husband and wife. It was preceded by 
warnings from rector and deacons, and if the year's separa- 
tion decreed by the court did not succeed in uniting the 
couple, the separation was made absolute by Royal dispensa- 
tion. Absolute divorce could be gained either by court de- 
cision or by Royal dispensation. The court acted in case of 
adultery, desertion, plots against or attempts upon the life 
of the petitioner, life sentence, unless the petitioner was the 
cause of or an accomplice in the crime, and uninterrupted 
insanity for three years. Royal permission could be had for 
"other causes", of which the law specified several already 
mentioned. In addition to these, the King could grant divorce 
on any ground deemed sufficient. 

The dissolution of marriage by divorce made it impossible 
for the persons involved to remarry until a letter of divorce 
had been issued by the cathedral chapter. Originally, the 
divorce was not considered legal until this letter had been 
issued, but in late years, the legal effects have been regarded 
as dating from the court decision. If a divorced person 
wished to remarry, it was necessary to present the letter of 
divorce or no publication of banns would be made. There 
was one exception. In 1795, a Royal letter stated that for 
members of alien faiths a letter of divorce was unnecessary. 
Even in this instance, however, the judge should refer the 
applicants for banns to the spiritual head of their congrega- 
tion. With the institution of civil marriage, this practise 
disappeared. 

In the course of time it became apparent that much was 
needed to make the divorce law better adapted to a chang- 
ing society. In 1879, the Riksdag asked the government to 
revise the entire divorce law, particularly since the gtound 
of malicious desertion had become much abused. The law, 
as we recall, required the deserter to leave for an unknown 
place or a known place abroad. Since Copenhagen was re- 
garded as abroad, it had become a Mecca for "deserters", 
whose absence from wife and children gave the former a 
valid ground for divorce, which could be gained in a few 
weeks. In 1888, the Sy nodical Congress asked the govern- 



Legislation in Sweden 39 

ment for legislation, which would prevent divorces by mu- 
tual agreement, which undoubtedly was the real ground in 
most desertion cases. Nothing was done. In 1899, the Riks- 
dag again asked for revision of the law, supported in its re- 
quest by the cathedral chapters. In 1903, the Synodical Con- 
gress reminded the government of this request, and in a 
communication four years later, the Solicitor General stress- 
ed the necessity for revision, because the practise of the 
courts had made divorce the prerogative of the rich, while 
the procedure for dealing with quarrelsome couples had led 
to much abuses and serious difficulties. A second commun- 
ication from the Solicitor General, in 1909, arrived, however, 
before the government took steps to instruct the Law Com- 
mission to begin work on a new marriage and divorce law.^^ 

^^Lagberedningens forslag etc., I, pp. 379-383. 



CHAPTER THREE 



THE LEGAL STATUS OF THE WIFE 

The best single index to a nation's social progress is 
probably the position of its women, socially, economically, 
and politically. In Sweden, development in this respect was 
not very rapid until about seventy-five years ago. From that 
time on, however, both the unmarried and the married wo- 
man's status has undergone revolutionary changes. 

In Teutonic countries, not the individual but the family 
as a unit was considered when legislation affecting its mem- 
bers was passed. The old Scandinavian family had many 
things in common with the patriarchal family of the Romans. 
The marriage, which transferred the guardianship over the 
wife from her father to her husband gave her only limited pow- 
ers, the husband being looked upon as the representative, spokes- 
man, and guardian of the entire family group. In this capacity, 
he managed all property belonging to himself or brought into 
the family by his wife. His power was gradually somewhat 
circumscribed in order to protect her interests, and she be- 
came joint owner with him of the property. This situation 
was reflected by all the Provincial Laws with the exception 
of the Law of Gottland, which contains traces of a dotal 
system, according to which the dowry was the private prop- 
erty of the wife, administered by her husband while the 
marriage lasted and reverting to her family, when the mar- 
riage was dissolved by death or divorce.' As part owner of the 
estate, the wife had a right to one-third of the joint property, 
which consisted of land and chattels acquired during the mar- 
riage. Originally, the wife was given joint ownership in 
chattels alone, as indicated by the marriage formula in the 
Law of Uppland, mentioned in the first chapter. 

The Country Law made no changes in the property rights 
of a wife under its jurisdiction. The Borough Law, however, 
equalized the property rights of spouses, giving the wife a 
right to half of the joint property. These laws also consid- 

^Lagberedningens for slag etc., II', p. 130. 



Legislation in Sweden 41 

ered personal property, such as clothing-, etc., private in 
nature, but if the wife died, her personal belongings went to 
her husband. Her dowry and the morning gift remained her 
private property, the latter belonging to her heirs, if she 
died. 

The older laws did not differentiate between private and 
joint debts; all debts were regarded as joint. The later 
Provincial Laws, however, segregated debts incurred in the 
form of fines, and still later those due to wastefulness, 
gambling, etc., all of which were to be paid by the guilty 
spouse alone out of his private property or his share in the 
joint property. As a protection for the wife, a Royal letter 
of 1669 gave instructions that the husband's pre-nuptial debts 
were not to be paid out of her property, unless she had made 
herself jointly liable with him for the payment of the debt.'^ 
The Code of ^" view of the statement that "when a man 

,_^^ and a woman have married, he shall be her 

1/34 

spokesman and shall represent her except in 

the matter of property withdrawn from his control,"^ the 
Code of 1734 still recognized the legal superiority of the 
husband. Unable to make a contract for the sale of her own 
property and unable to become legal security without the 
consent of her husband, in addition to many other legal 
disabilities, the wife's condition was but slightly improved. 
The law now recognized as valid a will drawn by the wife. 
The Law Commission points out that "her independent 
rights as housewife. .. .were not defined in the law." Only 
if her husband was out of his mind, absent, or had deserted 
her, could she dispose of property to buy the bare necessities 
of life. Even then, the law required her to take counsel with 
her relatives before selling real property. It was not ex- 
plicitly stated that she was her husband's ward, but in real- 
ity this was her position.* 

The difference between the Borough and the Country 
Laws, with respect to property rights of spouses, was main- 
tained. The former gave them equal property rights in real 
estate or waterworks on the town's land, whether acquired 
before or after the marriage. The people of the countryside 
were governed by the Country Law, which gave the husband 

^Ibid.,^ p. 135. 

^Sveriges Rikes Lag. Giftermalshalkcn, chapter 9, paragraph i. 

*Lagberedningc)is forslag etc., IJ\ p. 136. 



42 Marriage and Divorce 

the ownership of two-thirds of all the joint property. This 
property consisted of real property and chattels, jointly ac- 
quired by the spouses. The control of the property remained 
in the husband's hands and any pre-nuptial agreement limit- 
ing his power in this respect was invalid. The only legal re- 
straint upon him was the old Provincial Law prescription 
that he could not "give away, pawn, or sell his wife's real 
property in the country, or land or house of hers in the town, 
without her voluntary, oral and written, permission, given in 
the presence of witnesses, or orally given to the court."^ Only 
in case her husband deserted her or if separation from bed 
and board had been decreed, could she become the guardian 
of her own children and exercise control over the property. 

The law provided a greater protection for the wife in its 
careful stipulations regarding the responsibility for debts. 
Pre-nuptial debts and private debts had to be paid out of 
the property of the debtor spouse and if he used the other's 
property for this purpose, the law gave the injured spouse, 
usually the wife, a right to compensation. 

In order to provide some balance between the economic 
advantages of the spouses and give the widow a means of 
subsistence, the law prescribed a morning gift for the wife. 
This gift was to consist of real property or chattels, not both. 
If it was given in the form of real property, it could not ex- 
ceed more than one-third of the husband's share in such 
property. If it was less, his heirs were required to make up 
the difference. If it was given in the form of chattels, the 
wife had a right to one-tenth of her husband's share in the 
chattels, and in this tenth she received title. A morning gift 
in the form of real property could be used by her only dur- 
ing her life time or while she remained unmarried. At her 
death or remarriage it reverted to her husband's heirs. In 
1845, the rules regarding the morning gift were modified and 
the Borough Law provision, which gave the w^dow no right 
to the morning gift if she had children, was made general. 

The institution of separation of property was created as 
a further safeguard for the wife's interests. To begin with, 
this separation was an integral part of the bankruptcy pro- 
ceedings. The Bankruptcy Act of 1818 thus gave the wife 
a means of protecting her share in the estate from her hus- 

^Giftermdlsbalken, chapter 11, paragraph i. 



Legislation in Szvcden 



43 



band's creditors. Upon her petition, the court could decree 
that her property be segregated from the estate and placed 
nder the'control of a trustee. The husband was however 
permitted to act in this capacity, a situation which often led 
'toTe annulment of the separation Final y the sepai-aUon 
of property became quite independent of the bankruptcy 
proceedings. An act of 1862 gave the wife the nght to appea 
For such feparation on several grounds, the most important 
of which was the failure of the husband to exercise his guai 1- 
?an hip in a proper manner. The separation of the property 
caused of course, the disappearance of the joint property, 
til debts contracted by either spouse were with some ex- 
ceptions, to be considered private debts and the wife was 
made responsible for the payment of debts incurred in the 
"onduct o'f her business, if she had one, and ^or the paymen 
of fines and damages in suits against her She couW "o 
yet manage her own private property but had to place it m 
the hands of a trustee. , , 

The growth of the demand by women for independence 
made itself felt in the last half of the nineteenth century and 
he married woman's status became particularly ambiguous 
after 1858, which marked the independence of the unmarried 
woman at twenty-five.« From 1862 to 1873 not fewer than 
seven sessions of the Riksdag entertained motions to remove 
the husband's power of guardianship and give .^ J^^e the 
right to control her own property. The only visible eiifec 
w!s a communication from the Riksdag to the government 
in 1871 asking that a revision of the law be made m order to 
enable the wife to get controlling powers over her own prop- 
perty by a pre-nuptial agreement. Instead of revising the 
entire law, a decree was issued in 1874, giving the married 
woman, for the first time in Sweden, a right to control he 
own marital and private property and all property acquired 
by her own labor, if this right was settled by pre-nuptial 
agreement. She could dispose of her property at will and 
in suits regarding her property, she and not her husband was 
defender or plaintiff. A wife, who had taken precautions m 
accordance with this decree, was not forced to turn her prop- 
erty over to a trustee.' 



6In 1884 lowered to twenty-one. 

-'Laqheredningens forslag etc., IV, PP- 143-4- 



44 Marriage and Divorce 

The year 1874 saw another step forward in the emancipa- 
tion process. Due to the work of the "Society for the Mar- 
ried Woman's Property Rights", Sweden became the second 
European country^ to grant the married woman a right to 
her own earnings. This organization had also worked con- 
sistently to break up the system of joint ownership and 
thereby free the wife from her dependence upon her husband, 
which his position as sole manager of the property made 
possible. Repeated efforts resulted in a law, which, in 1898, 
excepted from the joint property any property acquired by a 
spouse before the marriage or later inherited. In addition, 
it was made possible for husband and wife to gain separation 
of the property by mutual consent. Such separation, once 
decreed, could not be annulled. Although the husband's 
power was somewhat reduced, he still remained in control 
of the property, but in addition to needing his wife's consent 
for the sale of real property, he was also forced to ask her 
permission for cutting wood on her land, etc. The law also 
made some changes in the rules governing the responsibility 
for debts. 

The question of the married woman's inferior position 
was again brought to a head during the session of 1903, when 
a letter to the King was prompted by motions in both 
Chambers that the husband's guardianship, which he exer- 
cises over his wife, be abolished, but that the husband never- 
theless retain his controlling power over the family property 
and his right to represent the family. Besides, there should 
be an express statement that a wife becomes of age at twenty- 
one, subject to the limitations imposed by the representative 
and administrative powers of her husband.^ Again, in 1908, 
the Riksdag sent the King a communication asking that a 
law be prepared giving the married woman the right to be 
appointed the guardian of her husband, in case the latter had 
been deprived of his majority privileges by court action. In 
1909, the Law Commission was ordered to take up the work 
of revamping the entire marriage act in the light of modern 
knowledge and the social development of the country. The 
result was the new marriage law, of which the part dealing 

^England passed such a law in 1870. 

"Stael von Holstcin, M., Malsmanskapci och kviuiiaiis sidlhiing inonv 
aktcnskapct cnligl gallandc sz'ensk rdtt, pp. 35-36. 



Legislation in Sweden 45 

with the economic position of the wife was submitted to the 
government in 1918. 

Before the law of 1920 went into effect, the status of the 
wife, as far as the law was concerned, was, in spite of im- 
provements, rather unfavorable in many respects, giving un- 
mistakable evidence of the double standard, which the pres- 
ent law has succeeded in abolishing. She, first of all, fol- 
lowed her husband's estate in life; if he for some reason or 
other became poor, she was obliged to accept this fact with 
resignation, even though he might have been the cause of 
the poverty. Her husband's nationality was hers, and the 
choice of domicile was in his hands. Her only right to re- 
fuse to live where he determined to live depended on wheather 
or not his decision would cause her life to be placed in jeop- 
ardy, expose her to injustice, or force her to move abroad. 
In the last mentioned case, she could refuse to comply with 
his wishes only if his business at the time of the marriage 
was not likely to take him abroad or if he was not appointed 
to some official position which necessitated foreign residence. 

A wife was in duty bound to expend her energies and ef- 
forts for her family and her home, in accordance with her 
husband's wishes. This meant that she could not accept 
outside work without his permission, unless the needs of the 
family made it imperative. Although the law gave him no 
power to compel her to follow his wishes, he could refuse to 
support her or could ask the clergy to "warn" her, the first 
step toward separation from bed and board. With her hus- 
band's permission^** she could conduct a business or engage 
in other profitable employment, but if he were legally dis- 
qualified to engage in business (due to official position as 
custom officer, public prosecutor, or tax collector) she shared 
his disability, even though she may have had his permission. 
If she failed to heed her husband's refusal, she could be 
fined like any other individual, who conducted a business 
without license. When she worked lawfully, i. e. with her 
husband's permission, her earnings belonged to her, although 
it is not certain that what she purchased w^ith these earnings 
became hers to do with as she chose. 

A married mother had nothing to say in the bringing up 
of her own children, i. e. the law gave her no such right. 

^^The industrial and commercial acts of 1846 prohibited a woman to 
engage in business without her husband's permission and security. 



46 Marriage and Divorce 

Her husband was their guardian until they reached majority, 
chose their life's work, and gave away his daughters in mar- 
riage. If he abused his guardianship, the court could appoint 
some one else guardian, but in no instance could the mother 
be so appointed while the family remained undisrupted. She 
was thereby classified with "feeble-minded persons, heavy 
debtors, spendthrifts, enemies of the child, persons not yet 
twenty-five years of age, or so old and crippled that he can 
not discharge his duties as guardian, etc."" Only in case 
the husband went insane, deserted his wife, or for other 
reasons was unable to exercise his guardianship, could she 
be substituted, and if he died, she took his place as guardian 
of her children — until she remarried. In case husband and 
wife belonged to dififerent religious faiths, the former de- 
cided in which faith the children should be brought up. 

As a rule, all the property of the spouses was joint, since 
in the majority of marriages no private property or income 
existed. Of this joint property the husband was the sole 
manager. His administrative powers extended even to his 
ivife's private property, with the exception of her private real 
property. He decided upon the amount to be spent for the 
household expenses, for the education of the children, and 
even for his wife's personal needs. The latter had no right 
to demand anything from her husband, except necessities, 
even though she may have been the source of the entire fam- 
ily fortune. Most important of all, perhaps, was the fact that 
no matter how he managed the joint property, he owed his 
wife no accounting. 

A husband could not dispose of his wife's real property 
without her written permission, witnessed by two impartial 
persons, or orally given to the court. Without such permis- 
sion he could not cut timber on her land or sell clay or sand 
etc. from it. If his management was unsatisfactory, she 
:ould apply for separation of property on that ground or on 
the ground that he had abused his powers as her representa- 
tive. She might even ask the court to place him under guard- 
ian on the charge of wastefulness, and if court action to that 
effect followed, she had a valid ground for divorce. 

Corresponding to the husband's position as the external 
representative of the family, the wife had nominal charge of 



^^Stael von Holstein, M., op. cit., p. 9. 



Legislation in Sweden 47 

the internal affairs, the domestic economy of the home. She 
had the power to purchase, even on credit, what was neces- 
sary for the maintenance of the physical welfare of the fam- 
ily and other personal needs, in addition to material and 
tools for domestic work. She could also sell these things, 
when they had lost their usefulness to her, and dispose of the 
products of the domestic work, which the family could not 
consume. The hiring and firing of servants, the payment of 
their %vages, etc. belonged in her province. What she, in the 
capacity of housewife, undertook to do bound her 
husband as well. For instance, he was legally bound to pay 
debts contracted by her in the exercise of her housewifely 
duties. But — her powers were entirely dependent on her 
husband's good will. She could perform no administrative 
act without his express permission. If she bought groceries 
on credit against his order, for instance, he did not have to 
pay the bill, unless the grocer was unaware of his order.^^ 

A wife could become the manager of the estate in case 
her husband became incapacitated or deserted her, or, if 
separation from bed and board was decreed and she was 
left in charge of the property while the separation lasted, 
i. e. for one year. In the former case, she could sell chattels 
to meet the necessary expenses of the household but not 
real property except by permission of the court and after con 
sultation with her relatives. 

A wife could also make debts, which were secured by her 
private property and her marital property, in case it was a 
private debt, and by her private property alone, in case it 
was an administrative debt. She could not, however, become 
security with legal efifect unless she had her husband's per- 
mission. If her husband unlawfully used any of her private 
or marital property, she could be compensated for her loss 
when the estate was divided, either after her husband's death, 
or when the separation of the property took place. Her 
right could also be protected by prenuptial agreement, in 
which case she might even control all her property and be- 
come in a large measure independent. Naturally, there was 
a great deal of hesitancy about having such agreements 
drawn up, since it seemed to imply that a woman did not 
trust the man she had chosen as her husband. Her position 

^^Stjernstedt, G., Den sz'enska kvinnans riittsliga sfallning, p. 37. 



48 Marriage and Divorce 

became more difficult by the law's provision, which required 
that, to be valid, the agreement should be prepared immedi- 
ately before the marriage took place and given to the court 
within a week after the wedding. In spite of this, however, 
late years have seen an increase in the number of pre-nuptial 
agreements, particularly in the cities. l'>om 1861 to 1865, 
inclusive, pre-nuptial agreements were made in only 1.89 
percent of the marriages, while for the period 1901-1905 the 
percentage had risen to 3.64, the figure for the countryside 
being 2.24 and for the cities, 7.36. From 1910 to 191 5, 4.70 
percent of the marriages in the country as a whole had been 
preceded by such agreements, the percentage for the cities 
being 13.10 and for the countryside 3.03. Of course, the man 
in the street was not very much in evidence in these figures, 
the percentage of agreements preceding the marriages in the 
group containing by far the great majority of the people, 
agricultural workers, laborers, and common soldiers, being 
less than two percent.^^ 

Most of the pre-nuptial agreements have dealt with the 
separation of property. Such separation could also be gained 
after the marriage, either upon joint or individual petition. 
If the petition was joint, the court granted it without further 
ado. The wife could petition for separation of the property 
in case the estate had such large debts that they could not 
be paid without using her private or marital property, in 
spite of the rules regarding the responsibility of spouses for 
debts ; if there was a danger that the payment of the debts 
of the estate would result in her losing her chance to receive 
compensation, to which she would be entitled at the division 
of the estate; if bankruptcy proceedings were started against 
her and her husband; if her private property or the joint 
property, which she could control (such as her own earn- 
ings), had been used to pay debts which such property did 
not secure, or if such property of hers had been pawned ; if 
her husband had unlawfully disposed of her private prooerty 
or their joint property; if her husband had burdened the 
estate with debts without corresponding benefits, or in other 
ways mismanaged the afifairs of the estate; if he had abused 
his powers of guardianship; if he had deserted her and had 
been gone for six consecutive months; or, if he had been 



^^Lagberedningens forslag etc., IV, pp. 519, 524-525. 



Legislation in Sweden 49 

placed under guardian. The separation had the effect that 
all property, acquired after the division had been made, be- 
came private, which meant also that from that time on all 
debts were private. Husband and wife were financially di- 
vorced in the eyes of the law, although it was still impossible 
for them to institute civil suits against each other, make con- 
tracts with each other, or give each other gifts, rules which 
were designed to minimize the chances for fraudulent ac- 
tions.^* 

The husband's power of guardianship gave him the right 
to represent his wife in court, except in civil suits dealing 
with property administered by her or in criminal suits against 
her involving serious crimes. In the latter case, husband 
and wife were jointly indicted. The representative power 
of the husband gave him also the right to act for his wife at 
stockholders' meetings, etc. 

This survey, imperfect as it is, ^hows that before the 
passage of the new marriage law, the married woman in 
Sweden had succeeded in gaining relatively few concessions, 
which somewhat differentiated her legal status from that of 
a minor child or an adult under guardian. Although it is 
true that the last half century has seen a great change in the 
attitude toward the woman as unmarried, wife, and mother, 
it was not until 1920 that she was given her economic free- 
dom, after years of active and determined warfare conducted 
from lecture platforms and through the medium of numerous 
books and pamphlets, under the generalship of women, whose 
names have become familiar far outside their native country, 
from the pioneer days of Fredrika Bremer to the days of 
Ellen Key. 

i^Stjernstedt, G., op. cit., pp. 51-2. 



PART TWO 



The New Marriage Law 



CHAPTER FOUR 



THE ENTRANCE INTO MARRIAGE 

Shortly after the peaceful revolution of 1809, the work of 
remodeling- the old civil code was begun. During the latter 
half of the nineteenth century, however, the Law Commis- 
sion was inactive and it was not until 1902 that a new com- 
mission was appointed for the purpose. It was to devote its 
efforts to the civil code and its first work was the revision of 
the Land Law, which was ready in 1909. In De- 
cember of that year, the Government instructed the Com- 
mission to begin work on the Marriage Law, with all the 
laws pertaining to it, and those portions of the Law of In- 
heritance, which could be suitably treated in the same con- 
nection. The value of cooperation with the other Scandi- 
navian countries to insure uniformity in this matter, which 
vitally affected all of them, was suggested, probably because 
a few weeks earlier a preliminary conference had been held 
for the purpose of discussing the advisability of inter-Scan- 
dinavian cooperation in this field. At this conference it was 
argued that the proximity of the countries and the extensive 
traveling had made communication so easy that is was highly 
desirable to cooperate in the production of a uniform mar- 
riage law, in particular the parts dealing with impediments to 
marriage, the marriageable age, and, most important of all, 
the legal status of the wife in the family. 

In August, 1910, the Government instructed the Commis- 
sion to meet with the delegates from Norway and Denmark 
to draft the parts of the law dealing with the impediments 
to marriage and the annulment of marriage, and the following 
year the Commission was further instructed to add the rest 
of the law suggested by the preliminary conference mention- 
ed; in 1912, the methods of consummating the marriage, etc. 
were added. The Commission comprised some of the finest 
legal minds in the country, a statement which holds equally 
true for the membership of the Norwegian and Danish Com- 
missions. Numerous meetings were held in all three coun- 



54 Marriage and Divorce 

tries and although it was found impossible to reach complete 
uniformity in all sections of the law, due to the great devia- 
tion of former legal practice, remarkable progress was made. 
Parts of the law dealing with medical questions, such as 
venereal disease forming an impediment to marriage, the 
marriage of epileptics, etc., were submitted to the Royal 
Medical Board and the Medical Faculty of the University 
of Uppsala for criticism and advice. For other parts, special 
experts were consulted. 

In 1913, Ihe work of the Commission had progressed far 
enough to enable it to present to the Government a draft of 
a law regarding the entrance into the marriage and the dis- 
solution of the marriage bond. While this law was under 
consideration and after its passage in 191 5, the Commission 
continued its work on the question of the wife's legal status 
in the family until a law, embodying the results of these 
efforts, was presented to the Government in 1918 and passed 
by the Riksdag in 1920. 

The Lazv of "^^■'^ Marriage and Divorce Law, the draft 

.Q. - of which was presented to the King in 1913, 

was embodied in a Royal Proposition to 
the Riksdag of 1915. It created a discussion, which was by 
no means limited to the halls of the legislature. The great- 
est opposition to this "insult to good old Swedish troth and 
faithfulness", which would cause the "destruction of the state 
of holy matrimony", probably came from the clergy. 

It was evident to everybody that there would be violent 
opposition to a measure which made such sweeping changes. 
When the Law Council listened to the reading of the law, 
it stated "that on account of the extraordinary importance of 
this field of legislation and because different points of view^ 
and sometimes different customs have developed in the prac- 
tice which the law attempts to regulate, it is to be expected 
that in many quarters the new law will meet hestitation and 
not infrequently opposition."- This fear was well founded. 
More than once, speakers in the Riksdag verbosely expressed 
their opinions that the law was "chemically free from ethical 

^Three justices of the Supreme Court and one of the Administrative 
Court, appointed to pass on the constitutionality and the formulation of 
all proposed laws and to report on the proposals for initiation, repeal, 
amendment, or explanation of all laws and decrees. 

'■^Kungl. Maj-.fs Proposition »;-. 18, 1915, p. 50. 



Legislation in Sweden 55 

principles", "savored of looseness'', and encouraged "selfish- 
ness" while "placing a premium on failure to live up to a 
sense of duty." 

In the First Chamber the law was championed by the 
Minister of Justice, His Excellency Hasselrot, who introduc- 
ed it in a speech on May 8, 191 5. The substance of his ad- 
dress was as follows : "The proposed law builds in the main 
on an existing foundation, the foundations of current con- 
ceptions of justice. With tenderness and care the many 
antiquities, the clumsy forms, which often humiliated un- 
fortunate people, have been removed. At every step for- 
ward, the importance, yes, the necessity of complete uphold- 
ing the sacredness of marriage, has constantly been the 
guide."" He also pointed out the long felt necessity for a 
revision of the one hundred and eighty-year old law, which 
had remained virtually unchanged in spite of the rapid social 
progress of the country. The changes that had been effected 
had been built on principles, different from those on which 
the old civil code rested with the result that the law in force 
presented a conglomerate of provisions, which failed in per- 
fect agreement, an absolutely necessary trait of a good law. 
Worse than that, however, was that "the law no longer ex- 
pressed the views current among the people Such a 

situation carries a danger for the authority of the law and 
for the maintenance of justice. It is time that the law is 
brought into harmony with the popular ideas of justice. 
That is the only road we can travel to protect the family, the 
foundation of our entire social order. A contrary behavior 
might lead the people to choose other forms than a family 
founded on marriage for the mutual relationship between man 
and woman, having for its purpose the propagation of the 
race. The proposed law is largely a codification of what has 
already been incorporated in the public sense of justice and 
which has to a great extent received expression in our social 
life side by side with the law or even in direct opposition to 
it."* 

n . ,T 7 The two chapters, which attracted the great- 

est opposition and criticism were the ones 
dealing with betrothal and divorce. According to the old 
code the betrothal was a formal act and could not lightly be 

^Forsta Kammarcns Protokoll, nr. 63, 1915, pp. 12-14. 



56 Marriage and Divorce 

broken. The fact that it formed a bar to a new marriage so 
long as it was undissolved by ecclesiastical action was its 
most important feature. The Commission was of the opinion 
that the betrothal had. in the course of time, become a mere 
preparatory agreement, an engagement, and that "since its 
main reason for existence was to afford persons, who in- 
tended to marry, an opportunity to learn to know each other, 
unfettered by conventions," it was no longer suitable for that 
purpose since it, in principle at least, excluded freedom of 
choice and bound the participants for life, even though it was 
more easily dissolved than a marriage.' One of the best in- 
dications that the old conceptions were no longer prevalent 
was that "the binding nature of the betrothal and its im- 
portance as an impediment to marriage is now rarely taken 
advantage of by the injured person. In fact, it is not consid- 
ered just for him to attempt to retain his betrothed with the 
aid of the law. In most cases he probably never knows that 
the law provides him with the means to do so. With the 
rise of a more deeply ethical conception, according to which 
marriage should first of all be built upon mutual love and 
sympathy, betrothal, as an impediment to a new marriage, 
has lost its foothold in public opinion."" This led the Com- 
mission to suggest that betrothals be entered into informally 
and as informally broken. "It should be enough that the be- 
trothed agree to dissolve the betrothal or that one of them 
signifies his intention to withdraw his agreement."^ The pro- 
posed wording of the law, "betrothal exists, when a man and 
a woman have agreed to marry", was attacked because of its 
"looseness" and was finally changed by the Riksdag to read, 
"Betrothal exists, when a man and a woman, by exchange of 
rings, in the presence of witnesses or otherwise,^ have signi- 
fied their intention to marry. "^ The significance of the chang- 
ed wording is not quite clear to the writer, since the words 
"or otherwise" seem to nullify the expected improvement. 

The incomplete marriage of the old civil code has re- 
ceived no place in the new law. These marriages were or- 
iginally instituted to provide a place in the law for the old 

'•'Laghcredningcns forslag, etc., I, p. 107. 
''Ibid, p. 108. 
''Ibid, p. 109. 
*My italics. 
^See Appendix. 



Legislation in Sweden 57 

civil marriage and were to be confirmed by a religious cer- 
emony. Now, their real purpose is to enable a woman, who 
has become pregnant, to gain restitution from her lover, in 
case he has deserted her. If such a situation exists, the new 
law tries to protect the woman by provisions built on the 
theory of financial responsibility. These provisions are prob- 
ably more eft'ective, since it gives the woman an opportunity 
to get damages should the man have no real property, a 
frequent occurrence during the regime of the old civil code, 
which resulted in the woman receiving nothing at all, since 
the law gave her a marital property right in his property, 
real and personal, while giving her no claim to his savings 
or his income. Therefore, if the woman becomes pregnant 
during the betrothal and the man later causes a dissolution 
of their relationship, she is entitled to financial compensa- 
tion, unless the man is under eighteen years of age, when he 
is not liable. The court shall, in its deliberation, take into 
consideration not only the financial loss which the woman 
may have incurred by loss of position or a loss of health but 
also the spiritual loss, which she has suffered, and the humil- 
iation to which she has been subjected. The law has found 
it impossible to maintain this point of view consistently, 
however. In case the betrothal is dissolved by the man's 
death, the law, for the protection of the mother-to-be, gives 
her, should she be in need, a right to a reasonable part of 
the man's estate, though not exceeding one-half of it. 

If no cohabitation has taken place and the betrothal is 
broken, it is in accord with the spirit of the law that no com- 
pensation should be granted the injured person, unless the 
latter has already begun preparations in view of the impend- 
ing marriage, in which case she may recover damages from 
the other, unless the latter was under age and entered the 
betrothal without his guardian's consent. The dissolution of 
the betrothal entitles each of the betrothed to the return of 
the gifts he has given the other in view of the marriage. The 
one, who has been the cause of the rupture, however, loses 
this privilege. 

The idea that it would be possible for a man and a woman 
to enter a secret agreement to marry, an agreement which 
could be as easily broken as made and which had no serious 
legal consequences except in cases where conception had 
taken place, was repugnant to many members of the Rigs- 



58 Marriage and Divorce 

dag. Mr. Rav, in a speech in the Second Chaml^er informed 
his colleagues that, so far as he could see, the hetrothal 
savoured more of a business transaction than of troth. "A 
man and a woman make a business agreement that they shall 
begin or end a marriage. There is no thought that troth, a 
g-ood old Swedish virtue, should last a life time."^^ 

Another subject for discussion was the proposed total 
abolition of the incomplete marriages, which institution was 
defended in the First Chamber by Prof. Steffen, the sociolo- 
gist. Professor Steffen held that the law should give to be- 
trothals the character of an incomplete marriage, in case the 
woman has become pregnant. "I believe," he said, "that 
a custom that will only gradually disappear among our peo- 
ple, will in such manner be given a legal protection, which 
will save it from sinking to a lower ethical level. We neither 
can nor should remove the preparatory agreements and rela^ 
tions, which result in marriage. But neither can we hinder 
that these betrothals and relations often, and among certain 
classes very often, become a kind of incomplete marriage, 
due to sexual relations and pregnancy, which follow the 
betrothal. Since real life is such, it is necessary that our 
laws should take it into consideration. What should this 
consideration include? It would, of course, include legisla- 
tion which guarantees the maintenance of the woman's and 
the children's idealistic as well as social and economic posi- 
tion, in case the betrothal is complicated by physical union, 
pregnancy, and childbirth, and the man refuses to complete 
the marriage. It seems reasonable and in accord with a 
sound sense of honor that our laws should protect the woman 
against the social misfortune of bearing an illegitimate child 
and later force her to bring it up, alone and without the 

married woman's name Instead of this the proposeti 

law gives her nothing but 'financial compensation' "." A 
similar opinion was voiced by Senator Stadener, who decried 
the fact that the old law provision had been left out which 
held that a betrothal existed as soon as the parties to it had 
asked for publication. Both he and Professor Thyren point- 
ed out that among the common people more than half of the 

^"Andra Kanunarcns Protokoll, nr. 71, 1915, p. 30. 

'^^Forsta Kaiiiwarens Protokoll, nr. 64, 1915. The Law of Children 
Born out of Wedlock, passed in 1917, has removed, in part, Prof. Steffen's 
objections. 



Legislation in Stvcdcn 



59 



marriages are really begun immediately after the Publication 
has been applied for and that such pubhcation - st^ looked 
upon as binding the candidates in a umon which shall be 

completed by a ceremony."^' . 

As to the impediments to marriage, the 
Disabilities ^^^ j^^^ is in some respects more lenient, 

and in others harsher than the old code. Certain considera- 
tions alien to the people of an earlier age have led to more 
stringent regulation of the age and heakh requirements o 
the candidates. The Commission was also guided m its 
deliberations by the fact that the niarnage rate m Sweden 
is remarkably low^^^ and that therefore the entrance into mar- 
riage should not be made unduly difficult. "Just as society 
sees in marriage the only desirable form o sexual relations 
so is marriage something so valuable to the happiness an 
personal development of the individual that he should not be 

excluded from it except for the most serious reasons 

Various economic and social conditions constitute such great 
obstacles to marriage that the legislator should care uHy 
weigh the advisability of adding legal disabilities to them. 
The Commission also emphasized the necessity o consider- 
in- the problems of public heaUh. "By the race hygiene of 
today, eugenics, increasingly strong demands are made tor 
legislation, which shall safeguard the future generations and 
intprove the human race. This movement aims to hght not 
only those dangers to public health, which are created by 
phenomena such as emigration, industrialism, or the massing 
of people m great cities, but also the race poisons, such as 
syphilis, tuberculosis, and alcohol. It will, consequently, en- 
courage society to conscious eiTorts to raise the marriage rate 
in its better qualified groups, while preventing the propaga- 
tion of the unfit. The steps to be taken in the first case are 
primarily of economic nature and therefore outside the realm 
of family legislation, from which one demands that it should 
prevent the marriages of those who are. from a eugenic point 
of view unfit and also provide means for the dissolution ot 
such marriages."!-^ To be able to act wisely m this matter 
and in accord with the above expressed conviction, the Com- 



^-Ibid, nr. 75, I9i5, P- 3i- 
i^See page 109. 
^*Lagheredningcns forslag, etc. I, pp. 129-30. 

^^Ibid, p, 131- 



60 Marriage and Divorce 

mission asked the Medical Faculty of the University of Upp- 
sala to give its opinion : 

I — in regard to the advisability of retaining the stipulations 
with reference to marriageable age and relationship as 
impediments to marriage and, in regard to the former, 
if the law should be made to conform with the Danish and 
Norwegian law, which places the minimum age of mar- 
riage at sixteen for the woman and twenty for the man. 
2 — in regard to the advisability of considering, under certain 
conditions, epilepsy, leprosy, insanity, venereal disease, al- 
coholism, other illnesses, impotence and physical defects, 
as impediments to marriage or ground for annulment. 
3 — if, and to what extent, punishments should be prescribed 
for a spouse, who infects the other with venereal disease 
or exposes him to such infection. 
4 — if, and to what extent, legislative action should be taken 
to prevent the spread through marriage of "inheritable" or 
infectious diseases.^" 

On the basis that, in the question of marriages, the most 
desirable features, from a social and a medical point of view, 
are a normal marriage rate, a fertility which is sufficient and 
which results in the best possible type of offspring, the best 
possible conditions for the personal hygiene of the spouses 
in and through the marriage, their greatest possible happi- 
ness and satisfaction therein, and a satisfactory stability of 
the union, the Faculty answered the Commission that thor- 
ough research showed no real reason why the minimum mar- 
riage age for the woman should be raised. A lowering of the 
age in accordance with Danish and Norwegian law was, 
from a medical point of view, inadvicable, but there was no 
reason why Royal dispensation should not be given in special 
cases where the candidates had not reached the marriageable 
age. Even then, it would be wise to establish a certain min- 
imum age, probably coinciding with the age of consent (fif- 
teen for the woman and eighteen for the man) below which 
dispensation could not be given. An application for dispen- 
sation should also be accompanied by a medical certificate. 
There was no necessity for retaining a lower marriageable 
age for the Laplanders, since inquiry had shown that in 1900, 

i«/6irf, p. 524. 



Legislation in Szveden 61 

out of 6,983 Laplanders, no man and only one woman under 
twenty years of age was married. 

In regard to the blood relationship, the Faculty was doubt- 
ful if marriages between uncle and niece, aunt and nephew 
should be permitted. Such unions should certainly not be 
entered into except by Royal permission and even then only 
when the application was substantiated by duly authorized 
testimony in regard to the good health and good constitu- 
tional heredity of the candidates. 

As to epilepsy, the Faculty proposed that epilepsy, which 
is not due to exogenic causes, should be made an impediment, 
but that Royal dispensation should be available on petition, 
on the condition that such dispensation should grant mar- 
riage with a specific person and should be made only upon the 
basis of an authoritative medical certificate showing the pe- 
titioners' health and constitutional heredity. Possible rela- 
tionship between them and the opinion of the Royal Medical 
Board must also be taken into consideration. Any one, who 
is or can with reason be suspected of suffering from some 
form of epilepsy should be denied the right to marry, unless 
he presents a medical certificate, approved by the Royal 
Medical Board, showing that he is free from such illness. 

As to insanity and kindred psychical derangements, the 
Faculty suggested that existing insanity and feebleminded- 
ness, previous insanity due to endogenic causes, and psychic 
or moral defects of more serious nature, forming a particular 
danger for the spiritual development of the offspring, should 
form impediments to marriage. Dispensations should be 
granted only under conditions similar to this previously sug- 
gested in case of epilepsy. A person who has been insane 
or who for good reason could be suspected of being insane 
or feebleminded or psychically abnormal should not be al- 
lowed to marry without a medical certificate approved by 
the Royal Medical Board showing him to be free from the 
psychical abnormalities mentioned. The same procedure 
should be required in the case of persons, who have been 
sentenced for more serious crimes, criminal repeaters, or 
vagrants. 

It was suggested that venereal disease in an infectious 
stage be made an impediment to marriage. As to alchohol- 
ism and leprosy no recommendation was made, neither did 



62 Marriage and Divorce 

the Faculty wish to propose that physical defects, such as 
deafmutism, etc., be made impediments. 

In answer to the question regarding punishment for a 
spouse, who has exposed his mate to infection from venereal 
disease, the suggestion was made that it would be more ad- 
visable to pass positive legislation providing for isolation 
and hospital care for diseased people. No legislative action 
for the prevention of the spread of inheritable defects was 
advised except that all candidates for marriage, who were 
suspected of suffering from such defects should be required 
to bring medical certificates of their fitness.^' 

After due consideration of this expert opinion, the Com- 
mission drafted the chapter dealing with the impediments. 
The marriageable age of the woman has been raised to eight- 
een, while that of the man remains at twenty-one. No change 
has been made in the King's power of granting dispensations 
in case of candidates below the above ages. Since there is 
nothing to indicate that the Laplanders need to be treated 
differently from the rest of the inhabitant?, the old civil 
code stipulation in favor of a lower marriageable age for 
them has been abolished. 

All persons intending to marry before reaching the age of 
21 must have their parents' or guardians' consent. This also 
applies to persons who have been placed under guardian, 
after reaching the age of majority. The rule is nullified only 
in case of those who have alread}^ been married. The old 
sequence of guardianship''' has disappeared and unless one 
parent is absent or incapacitated, the consent of both parents 
is necessary. In requiring the consent of both parents and in 
placing the man under the marriageable age on a par with 
the woman, the law departs from the old civil code. The re- 
fusal of consent must be based on sufftcient cause, or the 
court might be appealed to for aid. 

In accordance with the recommendation made by the med- 
ical experts, "epilepsy, which is mainly due to internal 
causes" has been retained as an impediment to marriage, and 
to this insanity and feeblemindedness have been added, which, 
although not mentioned as impediments in the old code, can 
be said to have served as such since feeblemindedness in most 

^Ubid, pp. 532-552. 
18 See page 18, note. 



Legislation in Szvcdcn 63 

cases and insanity in practically all cases precluded the power 
of making valid contracts. Venereal disease in an infectious 
stage is the most important addition to the legal impediments, 
all of which, with the exception of feeblemindedness and in- 
sanity, which are absolute, can be set aside by Royal dispen- 
sation, granted on the merits of the individual case. 

Important modifications have been made in respect to 
the impediments arising out of blood relationship. In line 
with former legislation, marriage between persons in directly 
ascending or descending line has been prohibited and so has 
marriage between brother and sister. Marriage between 
uncle and niece and aunt and nephew are now possible in 
special cases, if Royal permission has been granted ; the old 
code forbade these marriages. On the other hand, marriage 
is prohibited between persons, one of whom has been married 
to the other's relative in directly ascending or descending 
line, a prohibition which was seriously questioned on the 
floor of the Riksdag, and which should not have been made 
absolute. The law has abolished the old affinity rule, which 
placed a relationship based on cohabitation alone on a par 
with that of a marriage, as far as impediments were concern- 
ed. The old "confusio graduum" has disappeared. The law 
also forbids the marriage of a parent and an adopted child 
so long as the adoptive relationship exists. 

An explicit prohibition against bigamy is found in the new 
law. It is to be remembered that, although the criminal law 
provided punishment for bigamy, no former law actually 
prohibited it. 

For the purpose of establishing paternity, no woman is 
permitted to enter a new marriage until ten months have 
passed since the dissolution of the former marriage. If she 
can prove, however, that no marital relations have existed 
between her and her husband for ten months previous to the 
new marriage, this prohibition shall be set aside. The mourn- 
ing period, both for widow and widower, has been abolished. 

The incomplete marriage of the old code no longer forms 
a bar to marriage ; it has been abolished. The former im- 
pediment arising out of the fact that a person who desired 
to enter a new marriage had failed to divide the property of 
the deceased spouse, has received no place in the law. 
Neither does adultery any longer bar a person from marry- 
ing the one with whom the adulterous relationship existed. 



64 Marriage and Divorce 

A temporary impediment exists for the person, who, after 
the reading of the transcript notice or the publication of 
banns, fails to complete the intended marriage. For him a 
period of four months must elapse before another transcript 
is issued, unless his jilted betrothed dies. This, however, 
cannot be said to be an impediment in the usual sense. 

. As a means of discovering the existence of 

Publication of impediments, the publication of banns 
^"""■^' serves a useful purpose. It has been point- 

ed out, however, that it was usually in cases, where the ap- 
plicant was bound by an earlier betrothal, by an incomplete 
marriage, or by the failure to settle his estate, that the pastor 
was informed of the existence of a disability. Since all these 
impediments have been left out of the new law, the question 
has naturally been raised, whether or not the publication 
can be expected to be effective. It has been retained in the 
hope that a public announcement of an impending marriage 
may deter those from applying for publication, who shrink 
from publicity because they know that people are familar 
with their disabilities. It is also hoped that such an an- 
nouncement will actually prompt persons to inform the min- 
ister of existing impediments. Last of all, but not least im- 
portant, it makes a hasty marriage impossible. 

It is quite natural that, although the publication now 
serves a civil and no longer an ecclesiastical purpose, it 
should be in the hands of the clergy, which have for centu- 
ries, through the parish record, been the registrars of vital 
statistics, a function delegated to them by the state. Since 
the state, as a result, lacks the facilities which would make 
possible effective statistical work in this field, the clergy, 
in their capacity of parish registrars, have become the pub- 
lishers of the banns of marriage, a situation which may 
change at any time should the state decide to make provisions 
for civil registries. 

Publication shall take place in the parish, where the wo- 
man is registered or where she resides, in case she should 
not be registered there. Both betrothed must, in person, 
make application for publication to the minister in charge of 
the registry. Before issuing the publication notice he must 
make a careful investigation for the purpose of ascertaining, 
if there is any possible impediment to the union. 

If the man is registered in some other parish, he must 



Legislation in Sweden 65 

bring- a transcript of the record of his parish, issued by the 
proper registrar and showing his qualifications for the mar- 
riage.^'' This transcript, which cannot be issued until the 
consent of the woman has been obtained, specifies by name 
the woman he is to marry and gives information regarding 
existing impediments of relationship, etc. It serves as an 
aid to the minister who must investigate the application and 
is not meant as a substitute for this investigation. Usually 
the applicant's age is given in the transcript but should it 
be lacking, he must present other evidence in this respect, 
and if either petitioner is under age, the King's permission 
must also be presented, as well as that of parents or guard- 
ians, should their consent be necessary. 

Each applicant for publication of banns must present an 
affidavit that he is not, so far as he knows, suflering from 
venereal disease in an infectious stage ;"" that he is not re- 
lated to his betrothed, directly or by marriage, as stated in 
chapter 2. Paragraphs 2 or 9 ; and that no relationship, as 
stated in paragraph 8 of the chapter mentioned, exists be- 
tween them. The affidavit must also contain information 
whether or not he has been previously married. If the reg- 
istrar has reason to suspect that the applicant is feeblemind- 
ed or insane or has been insane within the preceding three 
years, he shall demand a medical certificate showing that 
the applicant is free from the afi^ections mentioned. A sim- 
ilar certificate of freedom from idiopathic epilepsy must also 
be presented, should the registrar suspect that the applicant 
is epileptic. In case the applicant has been previously mar- 
ried, he must present proof that the marriage is dissolved, 

i"A foreigner must, if possible, present a corresponding certificate 
from his home parish. 

2"In December, 1915, the following Royal decree was issued : If a 
physician has treated any one for venereal disease and said person shows 
symptoms that the disease is infectious or that infectiousness is likely to 
appear, he shall, whether or not he is still in the service, if the patient is 
likely to marry, privately and in a suitable manner inform him of the 
legal prohibition against his marrying without the King's permission. If 
he discovers that the patient intends to marry without such permission, he 
shall, without being hindered by paragraph 60 in the instructions for phy- 
sicians of Dec. 30, 191 1, immediately, and in writing, inform the pastor 
of the parish where the patient is registered. The pastor shall, in case the 
transcript is or will be issued, immediately transmit the information to the 
authority with whom information in regard to disabilities should be lodged. 
Svensk Forfattningssamling, 1915, nr. 485. 



66 Marriage and Divorce 

should the parish record or the transcript lack this informa- 
tion ; or, in the case of the woman, that the impediment re- 
ferred to in chapter 2, section 11, does not exist. In all 
cases, where Royal dispensation has been obtained, the 
necessity of obtaining proofs or affidavits is obviated. 

As soon as the minister has made certain that so far as 
his investigation can reveal, no impediment to the marriage 
exists, he shall immediately issue a notice of publication, 
which is to be read from the pulpit of the parish church three 
Sundays in succession ; the first reading to be made the Sun- 
day following the week, during which the publication was ap- 
plied for. The notice shall contain the names, the addresses, 
and the occupations of the candidates. Should the man hap- 
pen to be registered in another parish, the minister of his 
parish shall read a notice from his pulpit the Sunday follow- 
ing the week during which he applied for a transcript of the 
the parish record. This notice, in addition to the information 
found in the publication notice, shall also state the place 
where information regarding impediments to the marriage 
can be lodged, thereby making it more assured that a mar- 
riage does not occur in the face of disabilities. Any informa- 
tion of this nature, which may reach the proper minister 
shall be tested by him before any decision is made. Should 
he refuse to issue the notice of publication, his decision may 
be appealed to the cathedral chapter and, in case the chapter 
upholds him, to the Supreme Court. 

If the publication has been completed and no impediments 
have come to the minister's notice, he shall issue a certificate 
of publication, which states that publication has taken place 
in due order and that no impediments have been found to 
exist. Upon the basis of this certificate, the civil or religious 
ceremony can be performed . 

There are times when the inflexibility of the law might 
do much harm ; consequently, there have been special conces- 
sions made in certain cases. If a betrothed is dangerously 
ill or if the man has been called to arms against the enemy, 
publication may be dispensed with. Even in these cases, 
the requirements as to impediments must be filled. 

The only provision which was attacked by members of 
the Riksdag, was the one requiring affidavits of both the man 
and the woman, or as the law literally reads, "written state- 
ments made on honor and conscience," that they do not 



Legislation in Szvedcn 67 

suffer from venereal disease in an infectious stage. Senator 
Trygger felt that to vote for this provision would be "the 
most revolting thing he had faced during his entire parli- 
amentary career.-^ Senator av Ekenstam expressed as his 
opinion that he "considered as most revolting a requirement 
that forced young girls to make such declarations". "I do 
not believe", he said, "that the Swedish people has fallen so 
low nor that our women have so lost their virtue that they 
need to make such declarations. This conviction is not sub- 
jective only, but can be supported by statistics I shall 

only say that, if Stockholm and Gothenburg be excepted, the 
percentage of venereally diseased women is so small that if 
we, because of the one hundredth part of one percent that 
are found in the rest of the countrv, should demand of all 
girls such declarations it would be a sacrilege. I do not be- 
lieve that the people would thank our legislators for such an 
action. They would undoubtedly, like myself, feel that such 
a position would be materialistic. All the delicate sense of 
tact, which should appear in this matter, has flown and, in- 
stead, one thinks as a physician does of his patients, giving no 
consideration to what is moving in the realm of the spiritual 
life.""- The Commission was, of course, fully aware of the 
fact that there might be some indignation felt in individual 
cases but hoped that as the custom grew of instructing the 
youth of the country in sexual hygiene, the objections would 
disappear. In spite of the gallant champions which the 
women of Sweden had in the Senate, many of these women 
welcomed the provision because of its importance for public 
health and opposed its abolition, so far as they were concerned, 
because it would simply emphasize the double standard. 
Senator von Koch, in a short speech, took the occasion to read 
the following letter written to the legislative committee by a 
group of representative women. "We concur in the sugges- 
tion of the Royal Proposition in regard to the duty of the 
woman, as well as of the man, to present, at the time the 
publication of banns is asked, a written declaration, on honor 
and conscience, that she does not suffer from venereal disease 
in an infectious stage. We can. therefore, not support Sen- 
ator Ekman's opinion, expressed in his bill, nr. 68, F. K. 

^^Forsta Kaininareiis Protokoll, nr. 64, 1915, p. 39. 

'--Ibid, p. 35- 



68 Marriage and Divorce 

that such a declaration contains anything insulting to the 
woman. It should be assumed that a woman who enters 
marriage is sufficiently mature to realize that this provision 
has been made in the interest of society."*^ 

The cathedral chapters, which had been asked for opinion 
on this point, were divided on the question, although the 
majority left the paragraph without criticism. Those that 
found fault with it did so not because of the spirit of the law 
but because of its wording. The Cathedral Chapter of 
Vasteras wrote, "The proposed declaration by the applicant 
for publication of banns regarding freedom from venereal 
disease in an infectious stage, might of course, cause some 
difBculties, but when the desirability of such a declaration is 
so forcefully championed in medical circles and without doubt 
would aid in combatting a social evil, the Chapter does not 
deem it wise to suggest its abolition, hoping that a wording 
shall be found, which in a fine and tactful manner can re- 
move the most objectionable features in this delicate mat- 
ter."^* 

T,, ^ In its provisions regarding the marriage 

1 he Lcrcmoux ^u i r n ^u i 

ceremony, the new law follows the law ot 

1908 quite closely. It consequently rests on the elective prin- 
ciple, the principle of freedom of choice between the religious 
and the civil ceremony. It differs somewhat from the law 
of 1908-' in that the right to a religious ceremony has been 
extended, the civil celebrants have been increased in num- 
ber, and a definite statement has been made as to what con- 
stitutes the necessary elements of the ceremony and what 
the effects on the validity of the marriage are, should any 
of these elements be dispensed with. 

The law of 1908 reserved the religious ceremony to mem- 
bers of the State Church, who had partaken of its sacraments, 
or who had received religious instruction by a minister of 
that Church and b}^ him found prepared to receive the sacra- 
ment upon confirmation ; and to betrothed, who were mem- 
bers of the same alien faith, the ministers of which were by 
Royal permission authorized to celebrate marriages. The 
privilege of a religious ceremony is now extended to mixed 
marriages, where the betrothed are members of dift'erent 

■^Hbid, p. 39- 

^^Quoted in Lagtitskottcts utldtande nr. 22, 1915, pp. 23-24. 

-^See page 28. 



Legislation in Sweden 69 

denominations. In this respect the law has reverted to the 
position held before 1908. Within the State Church a cere- 
mony between a member of that Church and one belonging 
to some other Christian faith can now be celebrated. Min- 
isters of alien denominations with celebration rights can 
unite in marriage their own parishioners or, if the denomina- 
tion is Christian, a parishioner and a member of some other 
Christian denomination. It is to be observed that all the 
prerequisites, such as preparation for the sacrament, etc., 
are removed for members of the State Church. The Royal 
Proposition contained a suggestion that no unbaptized Lu- 
theran should, for the purpose of marriage be regarded as a 
member of the State Church, but this provision was not em- 
bodied in the law, because of opposition by the clergy, who 
felt that it would seem peculiar, if an unbaptized member of 
an alien denomination could enjoy a religious ceremony while 
a member of the State Church could be excluded from that 
privilege. A second reason was the difficulty of ascertaining, 
in some cases, who have been baptized within the Church, and 
a third reason "that.... as many as possible should be given 
the opportunity to have a religious ceremony performed and 
thereby come into contact with the Church during a most 
serious occasion in their lives."-*' 

The law, furthermore, gives to the King the right to ex- 
tend to members of L.utheran Churches of other countries 
the privilege of a religious ceremony performed by a min- 
ister of the State Church. As a result a proclamation was 
issued on December 3, 191 5, giving this right to members 
of the Evangelical Lutheran Churches of Denmark, Norway, 
and Finland and to members of the Evangelical Lutheran 
Augustana Synod of North America.^" 

As celebrant of the religious ceremony within the State 
Church, the betrothed may choose any minister of that 
Church. Only ministers of their own parishes, however, 
are duty bound to accede to their request. Within other de- 
nominations the marriage must be celebrated by a duly au- 
thorized minister. 

The civil ceremony is open to all, regardless of what 
right to a religious ceremony the candidates may have. The 
law has increased the number of the celebrants. In the towns, 

-*'Bishop Bergquist in a speech in the Senate, May 8, 1915. 
^'^Sz'cnsk F orfattningssauiUng, 191 5, nr. 480. 



70 Marriage and Divorce 

the registered magistrates, or, where there are no magis- 
trates, the president of the city council is authorized to per- 
form the civil ceremony. In the country, the public prose- 
cutor of the county remains as celebrant and in certain dis- 
tricts the Governor may appoint special functionaries. This 
provision was found necessary to meet conditions in some 
parts of the country, which, like Lappland, are sparsely popu- 
lated, and where many people have dispensed with the legal 
ceremony because of the expense connected with the far 
journey to a magistrate. The special functionary mentioned 
is duty bound to perform a marriage regardless of the resi- 
dence of the betrothed. Should a county prosecutor happen 
to reside in a town, he is also authorized to perform mar- 
riages there, although he is not required to do so unless one 
or both of the betrothed live in his district. 

Whether a religious or a civil ceremony is chosen, the 
candidates must present the certificate of publication to the 
celebrant. Although the presumption exists that such a cer- 
tificate means the absence of impediments to the marriage, 
the celebrant is nevertheless able to refuse to perform the 
ceremony should he know of some impediment. Only in 
case the celebrant is the minister, who issued the certificate 
in question, it is unnecessary to demand that the candidates 
present it. The life of the certificate is usually four months, 
but in the case of Laplanders, who are leading a nomadic 
life, a year may pass before the certificate becomes invalid. 
If either betrothed is dangerously ill or the man is ready to 
march against the enemy, a certificate of publication is un- 
necessary. Even in such cases, the betrothed must bring to 
the celebrant a transcript from the record of his parish and 
in addition meet all the prerequisites for the issuing of a 
notice of publication. 

As for the form of the ceremony itself, the law states that 
it shall be performed in the presence of relatives or other 
witnesses. The essential elements of the act are the pres- 
ence of both betrothed before the celebrant, their affirmative 
consent to the marriage in response to a question by him, 
and his declaration that they are husband and wife. In other 
respects the ceremony is guided by the ritual of the Church 
involved, or by the form proclaimed by the King for the use 

health and opposed its abolition, so far they were concerned, 
in some cases, who has been baptized within the Church, and 



Legislation in Sweden 71 

of civil celebrants.-® A marriage certificate is to be given 
the couple immediately after the marriage, and in case the 
civil ceremony has been used, a special report of the proceed- 
ings must be made. 

The omission of any one of the necessary elements of 
the ceremony invalidates it; so does the fact that the cele- 
brant is unauthorized to perform it. If the celebrant exceeds 
his authority and embellishes the ceremony or performs the 
marriage without the presence of the witnesses prescribed or 
without the publication being made, the marriage is not 
invalid. The celebrant, however, is liable to punishment on 
the grounds of malfeasance in office. 

The clergy raised an objection to the terminology of the 
law, because the Law Commission had extended the term 
"vigsel", formerly used only for the religious ceremony, to 
cover the civil ceremony as well, the latter being in former 
laws referred to as "marriage entered into before a civil 
authority." "Vigsel", it was said, "is a word with sacred 
sanction ; it implies a holy ceremony. To give legislative 
support to a wrong use of words in this manner would help 
to extinguish among our people the reverence for all that 

28December 3, 1915, the following proclamation was issued : 

"Sec. I. When the civil ceremony is to be performed and the be- 
trothed appear before him, the celebrant shall say to them : 

The aim of marriage is the welfare of the individual and the main- 
tenance of society. You have signified your desire to enter matrimony. 
Do you, N. N., take N. N. to your wife for better or for worse? Answer: 
Yes. Do you N. N. take N. N. to your husband for better or for worse? 
Answer: Yes. Take each other's hands in confirmation. (Before shaking 
hands, the man can put the ring on the woman's left hand). Empowered 
by my office, I declare you husband and wife. Never forget the promise 
of life-long faith, which you have now made. Live together in mutual 
love, confidence, and respect, and consider your responsibility to future 
generations. May happiness and unity be yours and bless your home. 

"Sec. 2. What has occurred at the ceremony, the celebrant shall im- 
mediately write into a special ledger, giving among other things, the time 
and place of the ceremony and the full names, addresses, and occupations 
of the betrothed. 

A notation shall be made in the margin showing that the celebrant has 
sent a notice of the marriage to the proper parish registry. 

"Sec. 3. The special celebrant, appointed by the Governor in accord- 
ance with chapter 4, sec. 5 of the Marriage Act, shall before the expirations 
of the month of January send the Governor a transcript of the contents 
of the ledger for the j'ear preceding. This transcript shall be kept by the 
Governor, and, if he should withdraw the appointment, the ledger shall be 
returned to him." Svcnsk Forfattningssamling, nr. 481, 1915. 



72 Marriage and Divorce 

which really has religious sanction."-^ It was suggested that 
the civil ceremony be distinguished by a word of less im- 
portance, a suggestion which the Commission had anticipated 
and which it met in the following words : "Until now the 
word 'vigsel' has in legal terminology been reserved for the 

religious ceremony In daily usage, however, the term 

has for some time been applied to the civil ceremony as well, 
and now this usage seems to be quite well established. Since 
this is the case, the Commission has not hesitated to .use the 
term 'vigsel' to include both forms. Such a change is useful 
also in the sense that it aids in removing a belief that a civil 
marriage is of lower value than one entered into by the aid 
of the Church, a conception which it should be to the inter- 
est of the legislator to combat."^" 

It was also proposed that the Riksdag exclude from the 
law all provisions belonging to the realm of Ecclesiastical 
Law, since it is the business of the Synodical Congress to 
pass such legislation. It was urged that something should be 
done to enable ministers to refuse to officiate, when one or 
both of the candidates had been divorced, since the marriage 
of divorced persons is repugnant and not in accord with 
orthodox religious teachings. The various objections made 
were embodied in resolutions, which were sent to the Synod- 
ical Congress of 191 5 together with a Royal letter asking 
that the Congress pass upon the parts of the Law dealing 
with the religious ceremony within the State Church, pun- 
ishment of ministers within that Church for failure to per- 
form their duty, and certain parts of the promulgation act.^^ 
After serious consideration, the Legislative Committee gave 
its opinion that "the term 'vigsel' to designate a civil cere- 
mony was out of place and without historical and ethymolog- 
ical basis," but that it was "already commonly used for the 
civil ceremony and had, besides, been given legal sanction by 
the new law passed by the Riksdag."^- "Without denying 
the weight of the reasons advanced against a religious cere- 
mony for divorced persons, the Committee must, nevertheless, 

-^From motion in the Senate by K. J. Ekman. See Lagutskottets 
utldiande, nr. ^2, 1915, p. 30. 

^^Laghcrcdningens forslag etc. I, p. 282. 

s^The law had already been passed by the Riksdag, when this com- 
munication was sent. 

^-Kyrkolagntskottets hetdnkande nr. 19, 191 5, p. 9. 



Legislation in Sweden 73 

point out that (such) prohibition would also affect the spouse 
who is innocent and not responsible for the divorce.... And 
since existing legislation places just about the same duties 
upon a minister to marry divorced persons as those imposed on 
him by the new law, the Committee cannot see any reason for 
suggesting such a change. "^^ The Committee also proposed 
to the Congress that it adopt for incorporation into the Ec- 
clesiastical Law the paragraphs, which the government had 
sent for approval, a suggestion which was promptly followed. 

^^Ibid, p. 10. 



CHAPTER FIVE 

THE DISSOLUTION OF THE MARRIAGE 

. . The preceding chapter has pointed out that 

formal detects in the marriage ceremony 
result in the invalidity of the marriage. The subject of this 
chapter is the dissolution of the marriage bond by annul- 
ment, separation, or divorce. It is particularly proper that 
the matter of annulment be discussed in connection with the 
other forms of dissolution, since the new law has given it a 
status, which in many respects dififers from the usual one. 

In the old civil code, the stipulations regarding annulment 
were scattered throughout the law and carried no special 
designation. In its motivation, the Law Commission states 
that "the legal consequences [of an annulled marriage] de- 
pend on whether the marriage shall be theoretically regarded 
as void ab initio or the legal efifects of the annulment shall 
date only from the time of the annulment." Formerly an 
annulment was retroactive and attempted to undo the mar- 
riage. This, however theoretically advisable, has serious 
practical difficulties. "Since a formally valid marriage has 
been entered into and the candidates have been regarded as 
husband and wife for a period of time.... it would lead to 
rather unfair consequences if, when the marriage is annulled, 
the law would fail to consider that a marriage has existed, 
particularly since it is a question of both economic and spir- 
itual interests. The demands of justice and humanity would 
undoubtedly be better satisfied, if the conditions, such as 
they have developed during the marriage, were disturbed 
as little as possible by the annulment. Only thus will the 
law adjust itself to the demands of real life."^ The point of 
departure for the solution of the problem is not "to regard 
the annulment decree as an explanation that the legal basis 
of the marriage is inadequate and that consequently no legal 
relationship has arisen, but to take for granted that as soon 
as a formally corect ceremony has taken place a real mar- 

^Lagbcredningens forslag, etc. I, pp. 317-318. 



Legislation in Sweden 75 

riage exists and that an annulment dissolved it. Such an in- 
terpretation seems also to coincide with current legal con- 
ceptions. It is true, of course, that existing legal stipula- 
tions in regard to annulment give expression to the theory 
of nullity, which was formerly accepted in our country, but 
nowdays an annulment is usually looked upon as a form of 
dissolution of the marriage, similar to divorce."^ No annul- 
ment decree shall therefore be retroactive. The reason for 
separating annulment and divorce at all, considering their 
similarity, seems to be partly due to tradition and partly a 
desire to conform to the legislation of foreign countries, a 
consideration of some importance since Sweden is one of the 
signatories to the Hague Convention of 1902. 

The law recognizes two kinds of grounds for annulment, 
one of public and one of private nature. The former in- 
cludes marriages, which are considered against public policy 
and which therefore must be dissolved, when the state, 
through its public prosecutors, has demanded the dissolu- 
tion. Grounds of private nature can be used as a basis for 
action only by a spouse. 

Marriage entered into, in spite of relationship of such a 
nature that the King would be unable to give permission to 
the union, must be annulled. Such marirages are ; those be- 
tween brother and sister, mother and son, father and daugh- 
ter, etc. Bigamous relationships also are in this group. 
Bigamy, however, cannot be made a ground for action, if 
the earlier marriage has been dissolved. 

Among the private grounds for annulment we find, first 
of all, insanity and feeblemindedness at the time of the mar- 
riage. In such cases, the afflicted person cannot be bound by 
his promise and, even though he should recover his health, 
he may petition for annulment within six months after his 
recovery, if he does not wish to forfeit his right. The same 
privilege is, of course, extended to the other spouse, if he, 
at the time of the ceremony, was ignorant of the former's 
condition. A marriage can also be annulled upon the peti- 
tion of a spouse, if he, at the time of the ceremony, was 
temporarily out of his mind or in a condition which excludes 
the ability to make a legal contract, such as intoxication, etc. ; 
if he, by mistake, married some other person than his be- 

^Ibid, pp. 319-20. 



7(i Marriage and Divorce 

trothed or did not wish to marry at all ; if he. at the time of the 
ceremony, was isrnorant of the fact that his betrothed was suf- 
faring from venereal disease in an infectious stage, leprosy, 
or idiopathic epilepsy, or was incurably disabled to perform 
the marital function; if he was deceived into the marriage 
by false statements or fraudulent concealment of the identity 
of his betrothed and such circumstances of his earlier life, 
w^hich, if known, would have caused the dissolution of the 
betrothal ; and finally, if he was forced into the marriage. 
The right to start action on these grounds is forfeited if not 
exercised within a certain time limit. On no condition can a 
petition be entertained, if made more than three years after 
the marriage, nor can it be made on the ground of illness, 
if the illness has been cured and if, as in the case of venereal 
disease, the petitioner has not been infected. Neither fail- 
ure to reach the marriageable age, nor lack of guardian's 
consent, nor failure to observe the waiting period in the case 
of a widow or divorcee, nor failure to get the King's per- 
mission in cases of dispensable relationships, constitutes a 
ground for annulment. 

"Due to the light in which the Commission has regarded 
marriages that are annulled, it is natural that, in formulating 
the rules of the legal efifects of the annulment, the correspond- 
ing effects of divorce should be frequently referred to.''^ The 
law states that, in the main, the legal effects of divorce shall 
apply to annulments as well. The most important devia- 
tion from this principle has to do with the division of the 
property. It has been considered unjust to give a spouse 
marital property rights in property, which the other owned 
at the time of the marriage or which he has later acquired 
through inheritance, gift, or will. When the division of the 
estate is made after the annulment, all such property shall 
be regarded as the private property of that spouse. The 
duty of support, which husband and wife in some cases owe 
each other after a divorce, does not exist in annulment cases. 
If the husband, at the time of the marriage, acted in good 
faith, but not the wife, he can also have the court prohibit 
her using his name in the future, another point of difference. 
A similarity exists in that the children of an annulled mar- 
riages are legitimate. The rules for damages in case of an- 

^Ihid, p. 321. 



Legislation in Sweden 77 

nulment also agree in principle with those governing- dam- 
ages in divorce proceedings and the law tries to regulate, 
in an equitable manner, the disposal of the family property, 
if a marriage, which should have been annulled, is dissolved 
by death. 

Separation and ^" drafting the part of the law dealing with 
_,. separation and divorce, the Commission 

probably met its most difificult task. The 
existing legislation was by no means adequate or in the 
spirit of the age. Malicious desertion, as a cause for divorce, 
had given rise to the so-called "short road" divorces, typified 
by trips to Copenhagen, which were available only to those 
who were financially fortunate and which violated the spir- 
it, if not the letter, of the law. The "long road" had to be 
taken by the poorer classes and since it involved public 
warnings and other unpleasant features, it gradually came 
to be regarded as a procedure highly insulting to the peti- 
tioners. Again, the increasing number of divorces by ad- 
ministrative order made the problem of the children acute, 
since arrangements as to their care and the division of the 
property were impossible, when divorces were granted at 
long distance. The Commission also pointed out that "what 
the old code provides as to the loss of property rights [on 
the part of the guilty spouse] ... .is, in practice, very unfair 
because of the application the rule has received, particularly 
in the case of malicious desertion. Usually it is not applied 
at all ; husband and wife make a private agreement in re- 
gard to the disposal of the property. Since, however, the 
law does not recognize as valid an agreement between hus- 
band and wife so long as the marriage exists, such an agree- 
ment must be clothed in other forms, which again neces- 
sitates the circumvention of the law. In many instances, 
however, it has been shown that such an agreement has been 
invalid, if after the divorce one of the spouses refused to 
abide by it."* The old code also failed to provide for the 
support of a divorced spouse, except in case of insanity, 
which meant that a wife, incapable of earning her own liv- 
ing, might find herself a pauper, when her husband gained 
his freedom, a condition, which often led the court to re- 

*Ibid, p. 385. 



78 Marriage and Divorce 

fuse divorce on the ground of "hatred and bitterness", even 
though the ground had been fully established.^ 

The family, the most important of our social institutions, 
must be founded on a deep and lasting love and sympathy. 
While this spiritual foundation exists, the union is ethically 
and morally justified. Should the foundation crumble, the 
marriage is no longer a true marriage and is, so far as society 
is concerned, much better dissolved. "With the present day 
ethical conception of marriage as a union, which should be 

built on mutual sympathy, love and confidence it would 

not be in the interest of public welfare to try to maintain a 
morally unjustifiable marriage, neither would this result in 
any gain for the spouses themselves or their children."® It 
is this conception, expressed in the first paragraph of the 
chapter on divorce, which was assailed by critics in and out 
of the Riksdag. To them, a marriage which could be sev- 
ered by mutual agreement of "husband and wife, who on 
account of deep and constant discord are unable to live to- 
gether," was "a mere contract law" and an "expression of 
materialism." To the Cathedral Chapter of Uppsala, the law 
upheld "an unworthy conception of marriage."' On the 
other hand, warm supporters saw in it the harbinger of a 
new morality. In the Second Chamber, the Reverend Hallen 
spoke in favor of the law, saying that "in making it easier 
to dissolve marriages, the great ethical result [of the law] 
is a reduction in the number of the marriages that are, in an 

ethical sense, immoral, because if personal love is not 

the binding tie in the union of husband and wife, their mar- 
riage becomes a lie, a condition, which our existing law does 

not remedy We must, indeed, admit that instead of 

being retrogressive, the law is the very opposite, since it is, 
in the realm of family legislation, trying to formulate those 
principles of justice by which children are protected and 
those marriages broken, which are actually nothing but 
legalized falsehoods."^ 

Mutual agreement, then, makes it possible for husband 
and wife to secure a divorce, if they, "on account of deep and 

''Ibid. 

^Opinion of Lord Justice Thomasson and Lord Justice Baron Leijon- 
hufvud. See Kungl. Maj:ts Proposition nr. i8, 1915, p. 80. 
''Logutskottets utldtande, nr. 32, 1915, p. 47. 
^Andra Kammarens Protokoll, nr. 71, 1915, pp. 32-34. 



Legislation in Sweden 79 

constant discord," have found their marriage to be a failure. 
If such an agreement exists, the court has no right to inquire 
into the nature of the "discord", which brought the mar- 
riage to such an unhappy end. "No one knows the conditions 
better than the spouses themselves. If they have found the 
marriage unendurable, there is a strong presumption that 
such a condition really exists. "** In order, however, to guard 
against hasty and maybe unfounded decisions and "to secure 
a guarantee that a divorce is not applied for until the hus- 
band and wife have, upon serious and mature thought, found 
it impossible to continue their marriage,"^" an absolute divorce 
is not given at once, the law establishing a waiting period of 
one year, or as the law terms it, a separation, which is very 
much akin to the old form of separation from bed and board. 
To maintain the marital relationships during the waiting 
period would make it difficult to reach a dispassionate and 
fair decision and the law, consequently, asks the husband 
and wife to live apart. One of them must leave home and the 
court usually permits the one to stay who has been less culp- 
ible or whose absence would mean the greater loss to the 
children. If it is necessary for the protection of the rights 
of those involved, the court may also, upon pain of imprison- 
ment or a fine, forbid any communication between the two 
for the period mentioned. The real purpose of the waiting 
period, which exists only for marriages, which are in the 
danger of dissolution due to internal dissension and for no 
other reason, is to make the conditions for a reconciliation as 
favorable as possible. Both husband and wife must during this 
period make earnest attempts to adjust their difficulties. 
They are in duty bound to ask their pastor or some other per- 
son, appointed by the court on their petition or appointed 
by the community as mediator in all separation cases, to help 
them in this matter. Should, however, all earnest attempts 
fail and no reconciliation be possible, the court will, at the 
expiration of the year, make the separation decree absolute 
upon the petition of either spouse. There is no publicity. 
Even the court proceedings will be held behind closed doors, 
should one or both the petitioners ask it. 

Separation can also be won by either spouse, upon his 

^Lagheredningens forslag, etc. I, p. 390. 
^^Ibid., p. 391. 



80 Marriage and Divorce 

petition, if the other is guilty of flagrant neglect in his duty 
to support the family, if he misuses intoxicants or leads a 
vicious life. Mediation must be tried in all such cases as 
well. Should the court find that the petitioner's private life 
and conduct is reproachable, it might refuse to grant the 
petition in order to inquire further into the case. The find- 
ings of the inquiry might lead the court to refuse the peti- 
tion entirely, unless the marriage is unjustifiable from an 
ethical point of view and neither children nor wife would 
gain from its continuance. 

The law recognizes that marriages, which are so only in 
name, because husband and wife have lived apart for three 
years or more due to "deep and constant discord", should 
be dissolved if either spouse petitions for it. The same is 
true when one spouse has, of his free will and for no valid 
reason, withdrawn from the marriage for a period of two or 
more years; the other has then sufftcient grounds for divorce. 
An absence of three years upon the part of one spouse with- 
out any information of his whereabouts, gives the other a 
right to divorce. If a person remarries, in spite of the fact 
that the former marriage has not been dissolved, the spouse 
of this earlier marriage has a ground for divorce. The law 
retains adultery as a ground for action and adds to it all 
other punishable fornication. 

If a spouse has exposed the other to infection from ven- 
ereal disease unknown to the latter, a ground for divorce ex- 
ists, should the latter wish to avail himself of it. Assault, 
plots against the life of a spouse, a three-year sentence to 
hard labor, or a shorter sentence at the discretion of the 
court; misuse of intoxicants in special cases; and incurable 
insanity, which has lasted continuously for a period of three 
years, are all grounds for divorce. The law no longer pro- 
vides for divorce by Royal dispensation ; all cases must be 
handled by the court. The petition must be made within a 
stipulated time to be effective. In cases where the guilty 
spouse remarries, commits adultery, or other punishable 
fornication, exposes the other to venereal disease, plots 
against his life, or assaults him, or is sent to prison for some 
serious ofifense, the petition must be made within six months 
from the time when the cause for action arose, and not later 
than three years from that time, unless the ground be that 



Legislation in Sivcdcn 81 

of bigamy, or exposure to venereal disease, when no time 
limit is set. 

The divorce has far reaching legal consequences. It af- 
fects the property of the family, may force one of the parties 
to support the other, and makes necessary a rearrangement 
of the provisions begun for the care of the children. When 
separation has been decreed, a division of the property shall 
take place, with the usual legal effect. Any property acquired 
after the division shall be the private property of the one who 
acquired it. Until the division takes place each spouse may 
continue to control his marital property, but when the time 
for the division comes he is duty bound to give an account- 
ing of his administration and of all the income which has 
accrued from such property. Should either spouse have 
reason to fear that the marital property (in all of which he has 
half interest) might sufit'er at the hands of the other, he 
may ask the court to withdraw his share from the other's 
marital property and place it under a special administrator 
until the division is made. This the court can do unless the 
other places security for the property, the withdrawal of 
which has been asked, thereby guaranteeing it against loss. 
Of course, if a prenuptial agreement as to the disposal of the 
property already exists between husband and wife or if 
separation of property has already been decreed before the 
divorce, no such measures are in order. Before a division is 
made, a careful inventory of all the property must be made 
and a copy of it deposited with the court. 

In some cases, the injured spouse may claim damages. 
If, for instance, a divorce is granted on the ground of non- 
support, drunkenness, or vicious living, and the petitioner's 
marital property is slight, he may, at the time of the divi- 
sion of the estate, claim necessary household goods, his tools 
and other chattels needed in the pursuit of his trade. This 
he can do, even though the other's share might suffer a de- 
pletion by the removal. If a spouse is granted a divorce on 
some ground which involves a serious wrong to him, or if 
separation has been granted him on the ground that the other 
seriously failed in his duties toward him, the petitioner is 
also entitled to damages, which vary with the financial and 
other circumstances of the family. 

Even though separation or divorce has been decreed, the 
duty of a spouse to support the other has not been removed. 



82 Marriage and Divorce 

The old law recognized this duty only in one case, that of 
insanity. The new law extends this duty to cover all grounds, 
providing, of course, for some exceptions in individual cases. 
If separation has been won, a spouse shall, nevertheless, con- 
tribute to the other's support, in accordance with the eco- 
nomic and social status of the family u}iless the latter was the 
cause of the separation, in which case the court will take the 
matter under special consideration and decide on the merits 
of the case. The same holds true in case of divorce. After 
the court has settled the amount, which should be contribut- 
ed, it still has the right to make changes in the amount at 
all times should circumstances make it advisable. It cannot 
make such changes if the alimony has been paid in a lump 
sum, once for all. The law recognizes as valid, agreements 
dealing with the disposal of the property, damages, and al- 
imony, entered into between husband and wife in view of 
the impending divorce or separation. If later conditions 
cause these agreements to become unjust or prejudicial to 
either spouse, the court may upon his petition make an ad- 
justment. 

What happens to the children? The law instructs the 
court to arrange for their care, guided by what is considered 
best for them. There is no set rule made for their disposal. 
If husband and wife have agreed between themselves what 
should be done with them, the court shall abide by this 
agreement unless the children's welfare would be endangered 
by the court's passivity. The law holds that the question of 
guilt should never enter into the consideration unless both 
parents are equally able to care for the children, in which 
case they should be awarded to the one who did not cause 
the disruption of the family in preference to the other par- 
ent. The latter would even then be in duty bound to con- 
tribute to the support of the children. The law places no 
obstacles in his way of visiting them, unless the visits would 
be detrimental to their welfare. Whichever parent is award- 
ed the children becomes their guardian, a right which during 
the marriage belongs to the father and mother in common. 

In short, the new law has on the whole materially facili- 
tated the gaining of divorce. By making separation by mu- 
tual consent possible, the rich and the poor are given the 
same opportunities for ending unhappy marriages. In fact, 
by requiring a separation of one year in all cases, where 



Legislation in Sweden 83 

"deep and constant discord" has disrupted the family, the 
easy divorce on the technical ground of maUcious desertion 
and the actual ground of mutual consent, has been abolished. 
The new law extends a greater protection to the weaker 
members of the family, the wife and the children, and has, 
by its direct and implied emphasis on the spiritual signifi- 
cance of marriage, earned a high place in the annals of modern 
family legislation. It is true that the law leans toward the 
conception of marriage as an institution, which has devel- 
oped out of human needs and which is not based on divine 
sanction. The ecclesiastical points of view have received no 
particular consideration, a fact which has been responsible 
for most of the criticism from that quarter. Many members 
of the clergy, however, saw beyond their creed in the dis- 
cussion of the law. In Svensk Tidskrift, Rev. S. A. Fries 
wrote in 1913, shortly after the appearance of the Commis- 
sion's report, 'T can not see that the work of the Church, 
in an evangelical sense, has been, in the least, curtailed by the 
proposed law, which, time and again, characterizes marriage 

as a moral institution and not merely a legal one When 

a balance is made of public opinion of the ethical position 
of the proposed law, I believe that a fair estimate of the law, 
from ecclesiastical quarters, will find in it an ethical point of 
view, sufficiently strong to satisfy an evangelical conception 
of the moral meaning of marriage. "^^ To make divorce easy is 
not immoral, but to permit people to marry, when they are 
physically or mentally unfit or unprepared to enter a relation- 
ship which is of greater importance than any other to the wel- 
fare of the group — that is immoral. A law which forces people 
to live in a marriage although the foundation of the marriage 
has crumbled, no longer "serves public welfare, and should be 
speedily abolished." Professor Edward Westermarck, the 
greatest living student of the family as a social institution, 
says, "It is a widespread idea that divorce is the enemy of 
marriage and, if made too easy, might prove destructive to 
the very institution of the family. This view I cannot share. 
I look upon divorce as the necessary remedy for a misfortune 
and as a means of preserving the dignity of marriage by put- 
ting an end to unions, which are a disgrace to its name. The 



^iQuoted by Count Hamilton in a speech in the Senate. See Forsta 
Kammarens Protokoll, nr. 63, 1915, p. 43. 



84 Marriage and Divorce 

existence of marriage does not depend on laws. If mar- 
riage is not an artificial creation but an institution based on 
deep-rooted sentiments, conjugal and parental, it will last 
as long as these sentiments last. And should they ever 
cease to exist, no laws in the world could save marriage from 
destruction. "^- 

rr^j na t -c What effect has the marriage and divorce 
1 he hjjects of ..,,..-_*'. 

law had upon family life: It is, as vet, too 

'^ ^^" early to make any good observations. It 

is apparent, however, that the expectation of a higher di- 
vorce rate as been fulfilled. Due to obvious causes, such as 
the institution of the one year waiting period, etc., there 
was a decrease in the number of divorces during 1916, the 
year the law went into effect. In 1917 there was a decided 
increase. While the number of divorces granted in 191 5 was 
847 and in 1916, /"y2, it jumped to 1,040 in 1917 and 1,045 the 
following year. In 1919, 1,170 divorces were decreed and in 
1920 the climax was reached, the number being 1,310. In 
percentages of the total number of marriages, the rate was 
for these years: 2.55, 2.20, 2.93, 2.71, 2.90, and 3.06. It re- 
mained well below one percent until the decade 1890-1900, 
when it reached 1.15, from which time a steady rise has 
been recorded. 

During the entire period 1917-20, there were 4.563 divorces 
granted. Out of these, 2,195, or 48.1 percent, were decreed 
after one year's separation on the ground of deep and con- 
stant discord or on the ground of mutual consent; 1,134, or 
24.8 percent, were granted on the ground of actual separa- 
tion for a period of three years due to dissension in the fam- 
ily ; 360, or 7.8 percent, on the ground that one spouse had 
wilfully withdrawn from the relationship for a period of two 
years ; 279. or 6 percent, on grounds, provided by the old 
law; 217, or 4.7 percent, on the grounds of bigamy or adult- 
ery ; 160, or 3.5 percent, on the ground of a three-year dis- 
appearance; 131, or 2.8 percent, on the ground of insanity. 
The rest, 87 in number, were granted on the grounds of a 
penitentiary sentence, abuse of intoxicants, or venereal dis- 
eases, plots against the other's life, or physical maltreat- 
ment, the last mentioned group figuring in only ten cases. 

^^Westermarck, Edward, The History of Human Marriage, vol. 3, pp. 
277-7^. 



Legislation in Sweden 85 

In over eighty percent of the divorces, mutual consent, or 
dissension in the family, which had resulted in the actual 
dissolution of family life, were the grounds of complaint.^^ 
It may be instructive to compare these figures with those for 
the decade 1901-1910, when 4,735 divorces were granted. 
Wilful desertion formed the ground for complaint in 2,224, 
or 47 percent of the cases. In 1,722 cases, 36.3 percent of the 
total, the divorce was decreed on the grounds of wasteful- 
ness, drunkenness, violent temper, or difiference in opinions 
and temperament; in 481, or 10 percent, on the grounds of 
adultery, in 155, or 3.3 percent, on the ground of crime; in 
132, or 2.8 percent, on the ground of insanity. Of the re- 
maining 21 divorces, thirteen were granted on the ground 
of incurable diseases, six because the wife, before the mar- 
riage, had had sex relations with some one else than the hus- 
band, one on the ground of life imprisonment, and one be- 
cause of plots against the petitioner's life.^* 

^^Statistisk Arsbok for Sverige, 1920, Tables 34-35, in page proof. 
^*Lagberedningens forslag, etc., I, p. 611, Bilaga 6. 



CHAPTER SIX 



THE LEGAL STATUS OF THE WIFE 

The second part of the new law, deaHng with the eco- 
nomic relationships in the family, was not ready for presenta- 
tion to the King until August 31, 1918, It was prepared by 
the Commission, cooperating with the Norwegian and Dan- 
ish Commissions, and was characterized by the same broad 
outlook, which featured the law of 191 5. To represent the 
Swedish women, Fru Emilia Broome, a leader in the work 
for the greater independence of woman, was appointed to 
the Commission, which otherwise consisted of Messrs. Eke- 
berg, Westring, Tiselius. and Stenbeck. Several communica- 
tions from the Riksdag to the government and many appeals 
from various women's organizations throughout the country 
formed a basis for the work, because they expressed not alone 
a wish for improvement but specified the changes desired. In 
the most important points, the laws of the three countries 
were given a similar structure. The emphasis of the Nor- 
wegian law, however, was upon the economic effects of mar- 
riage, while the Swedish and the Danish law included other 
effects as well. Some minor changes were necessary in the 
law of 1915, and after these changes had been suggested, 
the entire law of 1915 was included in a Royal Proposition to 
the Riksdag of 1920, the main feature of which was the law 
proposed by the Commission in its report of 1918. The law 
was adopted without much change, was promulgated June 
II, 1920, and went into effect January i, 1921. Laws em- 
bodying changes in the Inheritance Law, the Bankruptcy 
Law, etc., and a Law regarding Children in the Marriage 
were passed at the same time. 

It was a great victory for all those who had for years 
hoped and worked for the removal of some of the antiquities 
in the old code. The dynamic ideals of a progressive age had 
gradually caused the disintegration of the old philosophy of 
marriage, according to which the wife was to be silent in the 
public places and obey her husband at home. The women 



Legislation in Sweden 87 

of Sweden, or rather the representatives of the class-con- 
scious women of Sweden, the Fredrika Bremer Society, the 
National Association of Swedish Women, the National As- 
sociation for the Woman's Franchise, and the Executive 
Committee of the Social Democratic Women, in 1916 formu- 
lated the demands of the modern woman, whose desires were: 
"i. The guardianship by the man should be completely 
abolished so that the married woman can get full legal power 
to act. 

2. The changing conditions of life demand that the law 
should formulate and propose diverse systems of economic 
rights, based on private or joint property rights, and give 
husband and wife power to choose between these systems 
before the marriage and change from one to the other after 
the marriage, should they desire to do so. 

Where community of property exists, the economic in- 
dependence of the wife must be secured The chief prin- 
ciple should place husband and wife on the basis of equal- 
ity in the matter of administrative control, whether this be 
jointly or separately exercised. The law should therefore 
formulate several systems of joint ownership of property. 

According to their finances, both husband and wife should 
be duty bound to contribute to the maintenance of the fam- 
ily, the security of the home, and the education of the chil- 
dren, as well as to each other's personal expenses. If the 
wife has no separate income from her own labor or her pro- 
perty, her duty as contributor is filled by her labor in the 
home. Legal and efifective means of securing the contribu- 
tions mentioned should be provided. 

3. The parental authority should be shared by father and 
mother equally. In case of dissension, the welfare of the 
children should receive the first consideration. 

4. Disagreements between husband and wife should be 
referred to some authority, which should consist of both men 
and women. 

5. A woman, who marries an alien, should retain her own 
citizenship as long as she lives in her native country."^ 

Almost all the demands made in the above communica- 
tion were put into legal form by the Commission. In fact, 
the law gave in some instances more than was asked. It was 

^Lagberedningens forslag etc., IV, p. 155. 



88 Marriage and Divorce 

only the demand for citizenship, which was left unconsider- 
ed, not because the Commission was not favorably inclined, 
but because it did not consider such legislation within its 
scope. It is a far cry, indeed, from the marriage ritual of iSii, 
which, only slightly changed since the 17th century, read in 
part. "You shall carefully consider that God Himself insti- 
tuted marriage and made the man the woman's protector that 
he should be her protector and rule over her in the ear of God 

and to her benefit And as the man is by nature stronger 

and blessed with greater intelligence than the woman, he shall 
use these gifts for her protection and not for her subjection. . . 
The woman shall also obey the man, love him, and look up 
to him as her head, remembering that she was created to 
aid him. She shall not attempt to rule over him, because the 
woman was created for the man and not the man for the 
woman. "- 

The dependence of the married woman had probably been 
most keenly felt, because the law made the husband the mas- 
ter in the home. It is true that legislation during the last 
twenty years had attempted to extend the wife's powers. 
Favorable tax legislation made it possible for the married 
woman to take part in the political life of the local commun- 
ity, either as officeholder or voter, but her private rights as 
member of the family, were not enlarged. Both the Com- 
mission and numerous speakers on the floor of the Riksdag 
expressed the belief that the falling marriage rate among 
certain classes of people was to a great extent due to the 
dependent position, in which the husband's guardianship 
placed the wife, in spite of the fact that the dignity of woman- 
hood was rapidly growing and gaining for it privileges, 
which public sentiment granted but the law withheld. The 
Commission therefore felt its most important function to be 
the codification of the sentiments and practices, which had 
gradually developed and been given social sanction of extra- 
legal nature. 

The whole law regarding the economic and personal rela- 
tions between husband and wife is based on the conception of 
marriage as "a union between two free individuals with mu- 
tual duties to respect each other's needs and desires."^ The 

^Quoted by Senator Larsson in a speech in the Senate. See Forsta 
Kammarcns Protokoll, nr. 34, 1920, p. 64. 

^Lagberedningens forslag etc., IV, p. 160. 



Legislation in Sweden 89 

aim of the law is "to create complete legal equality of hus- 
band and wife in the marriage." This aim has been reached 
by abolishing the old institution of guardianship, by distribut- 
ing the powers of control, so far as property is concerned, 
and by securing the wife's economic position, giving her an 
equal voice with her husband in the management of the 
household and the bringing up of her children. 

"Husband and wife owe each other faith and assistance 
and shall jointly work for the welfare of the family," says 
the first paragraph of the fifth chapter. This means that from 
now on the wife has the same independence in her home and 
her relationship with her husband and children, that the hus- 
band has always had. The result is that she must accept the 
same duties of supporting the family that her husband has. 
The law recognizes, however, that her work in the home con- 
stitutes a fulfilment of that duty and that housework is as 
dignified, as valuable, and as necessary as the husband's 
work outside the home. But — the housework does not give 
the wife any cash returns. It earns her, however, the right 
to have sufficient funds placed at her command to meet all 
the needs of the household and those of her own. Money 
given her for this purpose is her own private property and 
really represents her contribution to the family support. 
Should her husband fail to supply her with money, i. e. should 
he stop supporting the family, she can ask the court to re- 
mind him of his duties. It is no longer necessary for her to 
leave her husband in order to make him support her, although 
that was the situation under the old law, when a wife, who 
retained her affection for her husband and did not wish to 
leave him, had to apply for poor relief, if he failed in his 
duties to supply the family with the necessities of life. In 
order to be able to make perfectly fair estimates of the re- 
spective duties of support, incumbent upon both husband 
and wife, they are by law required to inform each other in 
full of their financial condition and resources. The old law 
gave the wife no right to make a contract with a third per- 
son for the supply of necessities for the family, unless she 
had her husband's express permission. The new law gives 
her the right to enter into any contract for the purpose of 
meeting the requirements of the household or the education 
of the children and in doing so the contract shall be con- 
sidered as binding her husband as well. Of course, she can- 



90 Marriage and Divorce 

not expect her husband to become jointly liable with her for 
a debt, which was incurred to meet an expense, which does 
not harmonize with the social and economic status of the 
family. 

The duty of support, which ends in case the marriage is 
annulled, remains even though the family is broken up by 
separation or divorce. It is mutual, but will naturally fall 
upon the husband alone in most cases. The duty, however, 
becomes nullified in case the needy spouse is the one who 
caused the rupture. Alimony can be paid either in a lump 
sum or in installments. If the latter, the court may at any 
time and upon the petition of either spouse make adjust- 
ments in the amount. The installments are automatically 
revoked by the marriage of the person receiving them. 

The law makes no attempt to restrict a wife's personal 
activities in or outside the home. She is urged to "work 
jointly with her husband for the family's welfare", but no 
longer is it necessary for her to confine her work to the 
household. Her husband could, according to previous legis- 
lation, demand her services, a situation which no longer ex- 
ists. If she desires to dispose of her labor power to a third 
person and makes a contract with him to that effect, this 
contract is perfectly legal and valid. The law recognizes 
that conditions might arise when the welfare of the family 
demands that she accept outside employment and her power 
to do so should no longer depend on the consent of some- 
body else, even though that somebody may happen to be her 
husband. "She must have the right to dispose of her labor 
power just as her husband does of his," writes the Law Com- 
mission.* If she feels that her happiness and that of the 
family is gained by placing servants in the home and accept- 
ing employment outside the home, the law supports her 
choice. It is no longer necessary for her to ask her hus- 
band's consent to engage in business. 

The old code gave to the father the guardianship over 
the children. He decided the extent of their education, and 
chose their religion and their life's work. It is natural that 
a mother would seriously object to a stipulation in the law, 
which gave her no legal hold on her children. "The child," 
says the Commission, "is no closer to the father than to the 
mother and the father has, as a rule, no greater opportunity 

*Ibid. 



Legislation in Siveden 

than the mother of testing what is best for the child. Usu- 
a.;t'he%hild stands in much closer -timacy to the mother 
and particularly during the early years of a ch.ld s h e .s the 
mother more fit to decide the questions affectmg it Ihe 
TaAer s Zm to settle all problems alone becomes part.cular- 
; offer Jive if he uses ,t to place the child outs.de the home 
for its education and thus deprives .ts mother of '« ~'^„ 
oanionship and the chance of close supervision over it. 
The La V regarding Children in the Marriage, which went 
into effect at the same time as the new marriage and divorce 
C states that "a child is to be under the eare,of i s par 
ents until the age of twenty-one or until ^^"g^^^J^^'^^l 
uses the word father or mother so long as it discusses an un 
broken family. Should either parent die. the othe. becomes 
tl e sole guar'dian of the children. Of course, there might b 
d sagreements as to what should or should not be done for 
a child's education, etc.. but the law hopes that such differ- 
ences be settled without the aid of any outside agency. As 
alast resort, a court decision may be asked, the cotirt simply 
determining' which parent should be given the dee.ding voic 
in the matter and in no way attempting to solve the particular 
problem involved. In its action, the court must again b 
guided by what it believes to be the true welfare of the 

''"with the disappearance of the husband's guardianship, 
he also loses the right to be his wife's representative at the 
bar of justice or elsewhere. Her right to speak for herself 
has now become general. 

As to property ownership, the old code provisions we e 
lacking in unity and logic. "The legislation has Ptev.ously 
rested°on the principle of community of property, with the 
exception of inherited property or previously acquired ea 
property, and the placing of all property under the cont ol 
'o the husband. So long as this principle was in force -th- 
out exceptions the rules were simple enough W hen at 
tempts were later made, at different times and by various 
m ans, to strengthen the position of the ^fe without enti- 
Iv changing the systems of property ownership, it was pos 
sible only by departing, in special instances from the prin- 
cinle As a result the existing law inc ludes varying and 



'•'Ibid, p. 165- 

^Svensk Forfattningssamling, nr. 407, 1920. 



92 



Marriage and Divorce 



mutual y contradictory rules. This lack of unity and lo^ic 
in the law makes it highly complicated and difficult to ap- 
ply. According to the new law, all property shall be under 
the control of the owner, be it husband or wife At the 
same time the old common or joint property system has been 

r. '7.1.'".^ c^f ^°'"'- "^^ property, which a spouse 
has at the time of the marriage or acquires later, with cer- 
tam exceptions, is called his marital property. He controls 
this property and is, on certain conditions, allowed to do 
with It what he pleases. The other spouse has a latent right 
to one half of it a right which never appears on the surface 
until the estate is divided on account of separation of pro- 
perty separation, divorce, or death. This latent right imposes 
a duty on the owner of the property to administer it so ^hl 
It IS not unduly decreased, a condition which would be de- 
rimental to the other. The owner of the marital prope ty 
IS also unab e to dispose of it or mortgage it without the 

a^rdTitnTss^d.^'^ "'^^' ^ ^^^"^^--^ -^^^' --^ ^^ --- 

Any mismanagement of marital property may be brouo-ht 

to the attention of the court, and if a spouse has sufieedTn 

economic injury due to the mismanagement he is entitled 

aim^Tf'lirtr' ' "^^'^ '''-'''' '' '^'^'^''y proLc?ed The 
aim of all the provisions regarding the property of the 

spouses IS of course, protection for the wife who n the 

majority of the instances, gives her efforts to th; home and ' 

t7lZ\ZT " '^^^"^^ ^^^^^"^^-"^ -^^P-^-t by 
The private property of a spouse is entirely his own with 
no conditions attached and can be used or disposed of by 
him at his pleasure. Property may be made private by either 
prenuptial or postnuptial agreement between the spouses 
may be private, if given to the owner on the condition that' 

ditloT^naS"' ^^ ' ^"'^^^^^' '' ''- -^^ ^'^ -- -- 

The law makes each spouse liable with his private or 

afte;le'::r''' '"t.'^'^^ ""^^^^ '^ ^^"^ either'before or 
a er the marriage. He is not liable for the payment of the 

o her debts, unless they have been made to Uet the ne d 
•Lagberedmngens forslag etc., IV, p. 171. ~~ 



e 



Legislation in Sweden 93 

be joint in nature. Since the law regards husband and wife 
as two free individuals, they can also enter into valid con- 
tracts with each other, a right which the law carefully cir- 
cumscribes to protect creditors. 

Formerly, prenuptial agreements could be entered into 
between husband and wife for the purpose of retaining con- 
trolling power over property declared private by the agree- 
ment Such an agreement can now be entered into for one 
purpose only. It can either declare private property marital 
property, or vice versa. Formerly, valid only if entered into 
before the marriage, it is now binding even though it may 
be drawn up later. Ordinary gifts, in harmony with the soci- 
al status of the family, may be given by one spouse to the 
other without any agreement, subject to conditions, which 
aim to protect both the receiver of the gifts and the creditors 

of the estate. 

Should either spouse abuse his right to control his own 
marital property or in other ways so manage his economic 
affairs that his family suffers, the other may apply to the 
court for separation of the property. This can also be 
brought about in case the estate of a spouse has been sur- 
rendered to the creditors or if husband and wife have mutu- 
ally agreed to the action, even though all the above reasons 
may be lacking. The court will, upon receipt of the applica- 
tion decree that the property be separated. When the 
actual division is made, a spouse, who can prove that his 
interests have been seriously injured by the other's abuse 
of his controlling power over his marital property, may de- 
mand and receive compensation for the loss and, in some in- 
stances, damages. , 
In case either spouse dies, the law protects the others 
interests in a very adequate manner. According to previous 
legislation, the right of inheritance has been entirely gov- 
erned by the principle of blood relationship, making it im- 
possible for a spouse to inherit from the other Instead, the 
former had a preferential right to one twentieth of the chattel 
property of joint nature. At any rate, he could take from 
the estate "his wedding ring, bed, and necessary clothing 
even though the value of this might exceed one twentieth 
of the joint property. A widow, besides, had a right to her 
morning gift, which was given her only in case she was 
childless This gift was to be taken from the husbands 



^^ Marriage and Divorce 

share of the joint property and was to consist either in real 
property to the vakie of one sixth of his share or in chattels 
to the value of one twentieth of his share. The chattel prop- 
erty became hers but in the real property she received only 
a life estate. If the deceased left no heirs, the property be- 
longed to the state or in some cases to the municipality 
Uf late, the state has usually relinquished its right in favor 
of the surviving spouse. 

If a spouse dies intestate, the new law which gives to the 
survivmg spouse half of all the marital property, when the 
division of the estate is made after the other's death -ives 
him the right to inherit the entire property of the deceased 
shou d the latter leave no heirs, i. e. children, natural or ad- 
opted or their descendants, parents, brothers or sisters nieces 
or nephews. In case no children are left, half of the prop- 
erty goes to the surviving spouse, the other half to the 
heirs. If children or their direct descendants are found the 
entire property of the deceased is inherited by them ' Of 
course, the property can, by will, be disposed of at the 
testator s pleasure. The above rules do not apply if at the 
time of the death, husband and wife live apart or if' a peti- 
tion for separation, divorce, or annulment has been made 
The morning gift has disappeared, since the law, without it' 
gives sufficient protection to the widow. 

The new law also provides for the establishment of a 
central registration bureau, a Marriage Registry, to which 
the courts must supply certain information regarding di- 
vorces, separations, separation of property, etc. The records 
so obtained shall be published and issued periodically by the 
government. Copies shall be sent to the courts and the local 
administrators of justice, where the public shall have free 
access to them. In a Royal decree issued after the law was 
passed, the Central Statistical Bureau was given charge of 
the Marriage Registry. ^ 

The Law in ^he battle in the Riksdag was centered 

flic Riksdag. '"^""^ ^^°^^ t^e underlying principles of 

. ^ , ^^^ .^aw than about its special provisions. 

Statements of principles" were numerous in both Cham- 
bers and represented highly divergent and sometimes 
amusing positions. A member of the Legislative Commit- 
tee, Professor Reuterskiold, in a lengthy reservation against 
the opinion of the Committee, accused this body of being ig- 



Legislation in Sweden 95 

norant of the real nature of marriage. The Law Commission 
was characterized by him as a body prompted by a well- 
meaning desire but, unfortunately, supported by a lack ot 
ability " To think of marriage as a union between two free 
and equal individuals would be very dangerous to society, 
not to mention the inaccuracy of the conception. Marriage 
is not an agreement between two individuals but "a unity 
to which these individuals stand in a certain relationship and 
which consists of a power over both of them, the home, which 
is not alone the subject or aim of their activity but a self- 
contained society, in which both of them shall as members 
be active." In short, the family is a personality, something 
crreater and bigger than the sum of its members. To imagine 
that love and unity should form the basis of this union was 
another misconception fostered by the Law Commission and 
the Legislative Committee. Duty is the necessary founda- 
tion for marriage, and since the law does not emphasize this 
feature it was fit measure for ''a people in decadence. In 
an address to the Senate, Mr. Reuterski61d formulated his 
objections more concisely. "One conception [of marriage] 
builds upon the foundation of love and love alone. When 
love dies, the marriage is ethically broken and a moral duty 
to dissolve the marriage arises. The other conception builds 
upon duty and not upon love. For this conception love 
plays but one role in marriage; where it is found, a happy 
marriage exists, because a happy marriage consists m the vol- 
untary and willing performance of the ethical duties. But 
if the home, if the family shall form the foundation of so- 
ciety this foundation will be frail indeed, were it to depend 
solely on the emotion of love. If this love fails, the founda- 
tion fails. But, if we build upon duty as our forefathers have 
done for centuries, and they built their marriages many a 
time upon duty alone but on such a strong sense of duty 
that it overshadowed everything else, even the absence of 
love— then we shall get strong homes and lasting marnages.'^^ 
The objection was also made that in recognizing the indi- 
vidualities of husband and wife the law made of marriage a 
contractual relationship, which in its important consequences 
4 resembled a partnership, with the result that the law had 

^Forsta lagnfskottets ntldtande nr. 27, 1920, pp. 118-27. 
^Forsta Kammarens Protokoll, nr. 34, 1920, pp. 30-31- 



96 Marriage and Divorce 

been filled with explicit provisions for meeting all imagin- 
able difficulties arising between the partners and to protect 
them against each other. 

It was, of course, inevitable that the law should be termed 
an expression of feministic thinking. One Riksdagsman 
solemnly declared that it was an evidence of a decaying 
"masculine culture". "Would it be a gain to humanity if 
feminism were to progress and exercise an even greater in- 
fluence than masculinism? Permit me to doubt it. I really 
wonder if the women as a whole, with the exception of the 
feminists, are very much attracted by any form of feminism? 
I believe that manliness is even for them most attractive."^" 
Several speakers held that the law did not represent the views 
of the Swedish women, that the woman member of the Law 
Commission belonged to the upper classes and was, conse- 
quently, unable to speak except for a very small group, and 
that if the law were to pass, the most dire results would 
come. One inevitable efifect would be the lowering of the 
marriage rate, since the new law, although favorable to the 
women and actually designed to "entice" them into mar- 
riage, would deter the young men of the country from enter- 
ing a relationship where their authority would at every turn 
be questioned and where the peace and calm of their prover- 
bial "castles" might at any time be invaded by the law. 

It was declared that the law was a distinct case of class 
legislation, and did not at all suit the people of the country 
districts, while it placed upon a secure basis the ever in- 
creasing "free marriages", "Stockholm marriages," "concubin- 
ates", or whatever name they be given. The extension of 
the wife's right to control her own property and the dis- 
putes that would undoubtedly result, would lead society to 
cause unwarranted interference in the afifairs of the home, 
"the state within the state." What dangers might not lie 
hidden in the power of guardianship over her child, which 
the law granted the mother? Would not her ambitions 
cause her to give, or rather try to give, the child an education 
or a higher social status which would prove injurious to the 
family finances, to the child, and to society? Certainly it 
would have a detrimental influence on the practical pursuits, 
such as agriculture and the trades, should the feminine point 

^•'Mr. Magnusson in a speech in the second chamber. See Andra 
Kammarens Protokoll, nr. 40, 1920, p. 38. 



Legislation in Szvcdcn 97 

of view become dominant in the guidance of the child's edu- 
cation. All of which goes to show that the law did not lack 
opponents. 

If those who saw in the law a real danger to society were 
liberal in the expression of their views, the same holds true 
of the supporters of the measure. According to them, the 
law was based on a conception of marriage, which looks 
upon "marriage as an ethical institution, which places equal 
demands for selfsacrifice and duty upon husband and wife, 
while giving to both the same vital values. It should rest 
on a unity won by mutual consideration and not on a duty 
of obedience. Marriage, as a legal institution, should not 
be endangered by being built upon the same ethical founda- 
tion upon which it rests as an ethical community."^ The aim 
of the law is "to create legal equality between husband and 

wife and the proposal is thoroughly characterized by a 

desire to strengthen the family and the home, building upon 
the principle that within the home there should be freedom 
and individual responsibility."^^ Senator Lindhagen com- 
mended the proposed law because of its obvious attempt to 
foster spiritual values, as seen by the provision which recog- 
nized a wife's earnings as important as her husband's in con- 
tributing to the maintenance of the family .^^ 

The expressed fear that the minute legal provisions would 
mar the spiritual nature of the marriage by making it a kind 
of partnership was met, first of all, by the Legislative Com- 
mittee. "Such fears are, in the opinion of the Committee, un- 
founded. They seem to be based on a misconception of the 
aim of marriage legislation. The civil law should not and 
cannot decide upon the content of a marriage, a content 
which is of spiritual nature, but should limit itself to regulat- 
ing its external and material phases. The result is that mar- 
riage appears in the laws as a complex of material rights and 
duties. The great mass of its provisions have reference to 
the solution of disputes arising between spouses, and have 
therefore no importance for normal marriages. Because 
these provisions have been made more complete in the new 
law, it does not necessarily follow that marriage has thereby 

^^Stenbeck, E., Den nya dktcnskapslagen och kritiken ddremot, p. 6. 
i-State Councillor Unden in the Second Chamber. See Andra Kam- 
marcns Protokoll, nr. 40, 1920, p. 63. 

^^Forsta Kammarens Protokoll, nr. 34, 1920, p. 68. 



98 Marriage and Divorce 

become materialized. Unity in the marriage does not suffer 
because its foundation, in agreement with the ideas of the 
age, is assumed to be love and concord, won by mutual con- 
sideration, instead of the guardianship of the husband."** 
Professor Ekeberg, a member of the Commission, wrote, "It 
is obviously natural that most marriages are arranged with- 
out the slightest reference to the law. This has been the 
case until now, and will continue to be the case. Is it pos- 
sible that it would injure anyone's morals to have the law 
aid unfortunate fellow humans and, if necessary, try to 
strengthen their sense of duty?^'' "The law is not written for 
the happy marriages. The happy families of today know 

little about the marriage law In most marriages, the 

husband and wife adjust themselves to each other's wishes 

The aim of the law has been to seek an adjustment of 

conditions that could be improved and give the wife a more 
secure position in the family. Too much is expected, if the 
law is asked to foster happy homes. "^*' Senator Akerman 
very wisely suggested that both the enthusiasts and the vio- 
lent opponents might take the matter calmly, because "a law 
makes no miracles either for good or for bad." To those 
who feared that the new law would destroy the home, he 
said that so far as he could see "the destroyers of the home 
were bad temper, desire for power, unfaithfulness, drunken- 
ness, sickness, poverty, and other misery,"^' which no marriage 
legislation could coml^at. 

^*F'6rsta Lagutskottets utldtande nr. 27, 1920, p. 11. 
i^Article in Aftoiibladct, Feb. 20, 1920. 

^•'Mr. Hederstjerna in the Second Chamber. See Andra Kammarcns 
Protokoll, nr. 40, 1920, pp. 41-42. 

^^Forsta Kammarens Protokoll, nr. 34, 1920, p. 19. 



PART THREE 



The Social Significance of the 
New Marriage Law 



CHAPTER SEVEN 

THE SOCIAL SIGNIFICANCE OF THE NEW 
MARRIAGE LAW 

"The Law is only a memorandum. We are super- 
stitious and esteem the statute somewhat ; so much life 
as it has in the character of living men as its force." 

Emerson. 

The last century has seen what is probably the greatest 
relative progress from a social point of view, that the world 
has witnessed. Unknown forces have been discovered and 
new energies harnessed, so that phenomena which we re- 
garded as almost supernatural a few years ago have become 
commonplace to the man in the street, who is no longer 
sceptical of the achievements of science. Our control over 
the forces of nature has greatly increased and the revolution 
that has occurred in transportation has made the world many 
times smaller. Our ingenuity has opened new ways of en- 
larging our food supply and creating other necessities of life. 
Our pursuit of new sensations has made us devise more and 
better means of satisfying our desires. In all the material 
things of life we have been increasingly successful and from 
this point of view our social development has been little short 
of marvelous. 

But, while we have spent our powers in building up a 
material civilization to satisfy our bodily wants, we have un- 
wittingly released social forces that have moved beyond our 
control. We discovered steam and invented machinery, 
which made our industrial development possible, with the 
result that we have created a society, which instead of pro- 
viding greater freedom and happiness and opportunity for 
individual development, is making men more miserable, 
poorer. No matter how wonderful our inventiveness has 
been, as social engineers we have been failures. 

It is our good fortune today that we are beginning to 
recognize that, while we have been interested in machines, 
the men behind them have been neglected. It is a healthful 



102 ' 



Marriage and Divorce 



sign that we are teaching the necessity for a new individual- 
ism, an individuahsm, which does not have selfish aims but 
desires to develop in each individual all his best qualities in 
order to make him an intelligent member of our social order 
Outside the University of Lund stands a piece of sculpture 
which symbolizes this trend in our social thinking. Out of 
a massive rock, a powerful man is seen to emerge He is 
struggling to free himself from the grav granite which is 
fettering his body. It is the spirit of man breaking the 
shackles, with which an artificial civilization has chained 
him. It IS the symbol of a struggle, which has increased in 
power and intelligent direction, parallel with the develop- 
ment of our material civilization. 

Social progress in Sweden during the last century has 
been characterized by an increasing emphasis on human 
values. This is shown in all phases of its community life 
and has received expression in its laws. The last few de- 
cades, in particular, have witnessed a wave of social legisla- 
tion, a purposeful "socialpolitik", which has brought the 
country to the front rank in this respect. Not the least im- 
portant of these recent measures is the marriage and divorce 
legislation, in which the individualistic tendency is clearly 
seen. The forces that have brought about this awakening of 
the social conscience have been, first of all, the growth of 
industrialism, followed by a rise of trade unionism the 
growth of social democracy, and the movement for the 
human rights of womanhood and motherhood. In order to 
understand the peaceful revolution, which has occurred in 
Sweden socially, industrially, and politically, it will be neces- 
sary for us to make a short survey of these movements. 
The Growth of Sweden, although one of the largest of the 
Industrialism European countries so far as area is con- 

cerned, has less than six million inhabit- 
ants. Its 173,000 square miles is to a large extent covered 
by great forests and mountains. Only twelve percent of the 
land is arable or natural meadow; of this, the largest acreage 
IS found in the southern and central parts of the country ' 
During the nineteenth century, the cultivated land quadru- 
pled, but m spite of that fact the number of people engaged in 

;nJ,oS'^^''^"'v!^rT'"'>' """^ ^^"^""'^ ^f cultivated soil or meadow per 
inhabitant, while the figure for Western Europe is % hectare See 
Gumchard, J., Siveden, vol. 2, p 14 ^^ nectare. bee 



Legislation in Sweden 10^ 

agriculture materially decreased. The reason is to be looked 
for in the development of industrial enterprises. 

The industrial revolution came to Sweden very late. 
While in 1870 only twenty percent of the people were en- 
gaged in industry, commerce, and transportation, forty-five 
pefcent were so engaged in .910.= As industry developed 
agriculture, which had been the great source of employment 
decreased in importance. A steady stream of men from the 
farms brought a' new labor supply to the manufacturing in- 
dustries and the mines. In 1870, seventy-two Pej-ce" »« the 
people were engaged in agriculture and fi^'^ing , in 1910 on y 
forty-eight percent were found in this work. Froni thirty 
thousand i n'dustrial workers in l8fo to over o- h-tnd ed 
thousand in 1920 is a difference, «h.ch clear y shows ^he 
revolutionary change that has occurred. This "pansion has 

been made possible by the P.™g'«^'«/^^^'°P"!"' ^er of 
den's "white coal fields", the tremendous latent power ot 
ta numberless waterfalls and turbulent rivers. The exploita- 
tion of the rich iron ore deposits of Lapland, yielding an ore 
which in quality ranks first in the world, and the extraction 
Tf the riches of the great forests have made possible the 
development ot world markets, which promise o ■.-'ease m 
importance. Today Sweden ranks next to the United States 
in the value of its exports of lumber and its products. 

This development of industry, which caused the national 
wealth of Sweden to double during the period from 1885 to 
tcS brought with it the problems of an mdustrial society 
X tendency toward centralization of wealth and contro 
created a labor problem, and out of the inevitable confiict 
between employer and employed emerged a class-conscious 
wo king class, which is second to none in its mtelligence and 
The quflity of its leadership. In their struggle for liberty 
and happiness, the workers have devised two powerfu 
weapons a strong trade union movement and a Pohtical 
party, which has become the most powerful party in the 

country. Workingmen's associations in Sweden date 

The Trade ^^^^ ^^ ^^^ j^^j, ^„^ ,8th centuries, when 

union movement. ^^^ journeymen organized into brother- 
hoods for mutual aid and protection against their masters. 



'Ibid., vol. 2, p. 15- 



104 Marriage and Divorce 

That these associations were not regarded with any great 
pleasure by the latter can be gathered from the fact that a 
Royal decree of 1752 forbade the journeymen printers the 
right to peaceful assembly, ordered them not to "discourage 
an apprentice or advise him to quit the trade," and specified 
that a master printer had the right to take as many apprentices 
as he wanted. The masters had suspected that the journey- 
men wanted to keep the wage high by attempting to gain 
a monopoly on the labor.'^ Several other trades had similar 
organizations, which largely had the nature of benefit so- 
cieties and which seem to have lost their energies by the 
beginning of the nineteenth century. 

In the sixties and seventies a new wave of organization 
came. 1 he workingmen's associations were formed, a phase 
in the development of trade unions, which seems to be uni- 
versal. They were of the same type as our own National 
Labor Union. "Their form of organization was too loose 
and their program, a mixture of humanitarian, political, and 
benefit teatures, was too weak for the new conditions in 
which the worker found himself due to industrial and social 
progress. The influence of the worker was also graduallv 
displaced by that of other elements. The workingmen's as- 
sociations could not by their efforts create an independent 
labor movement in Sweden or put their stamp on it They 
did, however, leave an indelible mark in the worker's waken- 
ing realization of the need for organization."* 

The trade union movement in Sweden was powerfully 
influenced by the experience of the great industrial nations, 
particularly England and Germany. The first craft union 
was formed in Stockholm as early as 1846 by the typograph- 
ers, but not until thirty years later did the movement make 
any progress. In 1872 the bookbinders organized in 1874 
the hatters, in 1876 the paperhangers. and in 1880 the car- 
penters. All these unions had their birthplace in Stockholm ' 
Before any attempts were made to unite the locals of ihe 
same craft into national unions, the need for cooperative ef- 
fort had been felt. In 1882. the woodworkers' union of 
Stockholm issued an invitation to other local unions to elect 



^Fackfdreningsrdrelsen, I, Sverge, p. 18. 
*Soderberg, Ernst, Svcnsk arbetarrorelse, p. 5. 
"Fackforemngsrorclscn, I, Sverge, pp. 39-40. 



Legislation in Sweden 105 

delegates to a city central committee. These delegates met 
the following year and drafted by-laws. The aim of the 
organization%vas "to unite the workers o the differen 
trades in a strong labor party to work unitedly for reforms 
necessary for a social development founded on a sound and 
reasonable basis.'- A program was prepared, according to 
which the committee, among other things, was to work tor a 
ten-hour maximum day, sanitary inspection of workshops, a 
public employment bureau, old age insurance, state subsidies 
or loans for workers' associations and cooperative enterprises, 
arbitration in labor disputes, equal franchise, better schools 
etc The program was later changed in many respects but 
the occurrence of several strikes and the growth of the So- 
cial Democratic Party, the program of which was in many 
respects like that of the Committee, soon caused the latter s 
decline The need for national organizations, which could 
provide better support in industrial disputes, was also felt. 
In 1886 the f^rst Scandinavian trade union congress was 
held in Gothenburg. This congress passed a resolution fav- 
oring the organization of national trade unions. The same 
year the typographers formed their national union, followed 
by the mail clerks. The painters organized on a national 
scale in 1887, and the iron and metal workers the following 
year, after which progress was very rapid.^ 

To gain still greater strength, the national unions united 
in one great federation, the Federation of Labor, organized 
in 1898 Its aim, as formulated at its first congress in 1898. 
was "to give financial support to a union attacked by a lock- 
out if the latter affected a certain percentage of that union s 
workers "^ In 1900, its activity was enlarged to include et- 
forts to organize workers" and the preparation of reports 
re-arding union labor in the country. From 1909 on, the 
Fe^deration has also given financial support to strikes. Ac- 
cording to the latest by-laws, those of 191 7. the Federation 
aims "to organize workers into unions and to determine gen- 
eral policies, particularly in respect to the attitude toward 
the employers' associations; to unite locals into national 
unions; to spread the knowledge of social and economic 

^Ibid., pp. 51-52. 
Vbid., pp. 60, 94 et seq. 
^Ihid., p. 176. 



106 Marriage and Divorce 

problems among the trade unions; to make studies and com- 
prehensive reports of the trade union movement in the coun- 
try; to lend financial support in case of lock-outs or when 
the right to organize is threatened ; to give financial support 
to unions in their attempt to build assembly halls and 'Peo- 
ple's Houses'; to maintain the relationship with correspond- 
mg organizations in other countries and work for mutual 
financial support between them."« In 1920, the Federation 
consisted of 31 national unions with 2.799 locals and a mem- 
bership, which, from 7,000 in 1899. had grown to 280029 in 
December, 1920.1" This means that some 57 percent of the 
Swedish workers are members of the Federation. If we add 
to this the membership (about 110,000) of the independent 
unions, such as the railroad brotherhoods, the textile workers 
the mail clerks, the electrical workers, the seamen's union' 
the agricultural workers, etc., which, although fully in sym- 
pathy with the Federation have not joined it for financial 
reasons, the labor organizations would probably include be- 
tween sixty and sixty-five percent of all the workers in the 
country, a very remarkable percentage, which has no equal 
outside of Scandinavia and which to a great extent explains 
the trend of social legislation in Sweden during the last fifty 
years. 

The big general strike of 1909 taught the workers a lesson 
The labor congress, which met shortly afterwards, went on 
record in favor of a gradual change from craft unionism to 
industrial unionism, which would provide a much stronger 
weapon of defense. A committee was appointed for the pur- 
pose of working out new by-laws. The congress of 1910 
was presented with the proposed draft, which did not depart 
from the status quo, except that it recognized the importance 
of industrial unionism and expressed itself favorably toward 
It . The Federation today consists of both craft and industrial 
unions. The tobacco workers, the metal workers, the shoe 
and leather workers, the saw-mill workers, the stone workers, 
the brewery workers, the bakers, and the miners are organ- 
ized by industries instead of by crafts. 

igiy^^''^^'^'' ^'"* ^^"'^•^^''^««"«'«''"^" i Sverge . . . antagna i augusii 
^Werdttelse over Landsorganisationens verksamhet ar 1920, pp. 65-66, 



Legislation in Sweden 107 

The Soeial Parallel with the development of the trade ^ 

Democratie unions for the purpose of pro ecting their 

PaZ interests in industry, the workers formed 

^^^^^ the Social Democratic Party for political 

AUhnnfrh there is now no direct connection between 
tu rFedetartd't": Pany, the latte. i^'argely composed 

o, union .embers -^^^™-{, | .^^^^^l^^'^as ^^a^te^d 
rr.st fTX n sttle purposesfthe country has been 
a-vld^d^- Jo distnc. and - >at.er .n. w..e. ;o;~^^ 

rX e"":rr I'at'rn locals. Any .oca, un.on ca 

Par7compulsory for its members.^ but oppos.t.on made .t 

^"Ivte' in'thTrcotnlif h^M'r^he workers have securely 

,t,W h^d the principle of collective bargammg, and gained 

rlrea i"P ovem nt in working conditions, etc., the poht.cal 

one reoresentative in that body in 1902. the number had in 
one «P'"<=""". ,. The Liberals have shown a great 

i:::ing warVtat'e socialism and have been active allies 
of the Social Democrats in the promotion of socia leg.sla- 
Hon The best indication of the change in political tone s 
Tcomposition of the Senate, the First Chamber, which, 
until ig'o, succeeded in maintaining a staid conservat sm^ 
The increase of Social Democratic senators from 3 ■" igM 
to Ko in 1921 has thrown the balance of power to the libera 
groips. The hope was expressed that when the women of 
fhe country were given their first opportunity to vote in 
'national elections, tlere would be a healthful ch-ge o anj 
conservatism, but this hope was crushed '" ^l^^ *='«"°o"J 
1921. With the aid of the women voters, the Social Dem 

npackforenmgsrcrelsm, I. Sverge.f. 160 -I seq. 
nAmerkan-Scandtnavian Review, December, 1921, p. 829. 



108 Marriage and Divorce 

ocrats alone registered 37 percent of all the votes and placed 
143 members in the Riksdag, fifty of them in the First Cham- 
ber. Together with the Liberals, the Left Socialists, and the 
Communists, they make up sixty-three percent of the Riks- 
dag, an overwhelming majority. It is, in particular, to 
Hjalmar Branting, the present premier of the first purely 
Socialistic ministry in Sweden, that the Social Democratic 
Party owes its greatness; i. e., if it is possible to name any 
one individual. His able statesmanship and clear vision have 
saved it from many of the pitfalls, which were, either in- 
tentionally or not, placed in its way. 
The Woman's There have been several important reasons 

,- for the rapid development of a movement 

Movement. r ..u • 1 j r u- u ■ 

for the independence of women, which in 

Sweden has taken two very distinct forms, one airning to 

enfranchise the woman, the other aiming to improve her 

social status by means of education, one stressing equality 

with the man, the other emphasizing the supreme dignity 

of motherhood and wifehood, one headed by Mrs. Wicksell 

and others, the other championed by Ellen Key. 

Various causes have operated to produce a great surplus 
of women over men in Sweden. In 1910. when the census 
was taken, there were 2.698,729 men and 2,823,674 women, 
the men making up 48.9 percent of the population. This 
difference between the number of men and women has al- 
ways existed, but has not made its appearance until mature 
age has been reached. Thus, of every 100 children born in 
1910, 51.4 percent were boys. Due, however, to a larger 
infant mortality among the boys and a higher mortality after 
the age of eighteen, there is an increasingly greater surplus 
of women over men. This condition seems to be slowly 
changing to a more favorable equalization. In 1750, for 
instance, the proportion between men and women was as 47 
to ^2,'' 

It is, however, the proportion between unmarried men and 
women in the marriageable age which is of still greater im- 
portance in this connection. An examination of statistics 
indicates that at the end of 1910 there were 482,307 unmar- 
ried men between the ages of 20 and 50, while the number 
of unmarried women between 17 and 45 was 580,817, or 120 

i^Flodstrom, I., op. cit., pp. 582-83. 



Legislation in Stvcden 109 

women to lOO men. Even this is an improvement over the 
year 1750, when there were no fewer than 154 women of the 
ages mentioned to each 100 men.^* 

In addition to this great surplus of unmarried women of 
\yorking age, it is to be noted that the age of marriage is 
quite high, the average being 30 years for the men and al- 
most 27 years for the women. When we also consider the 
fact that the marriage rate has decreased to such an alarming 
extent that the Riksdag has even taken official notice of the 
fact and voices have been raised in favor of governmental 
measures to aid the formation of families, ^^ we can under- 
stand that the ground has been well prepared for a strong 
woman's movement. From 1750 to 1910. the number of 
married women per million of total population decreased 
from 113,637 to 87,329, while for Western Europe today, the 
average number of such women is equal to the number in 
Sweden 150 years ago.^*' 

The reasons for this preponderance of women and the low 
marriage rate are primarily the growth of industrialism and 
a large emigration to United States. The latter dates roughly 
from the early forties. From that time up to 1914, some 
1,350,000 persons emigrated, while only 280,000 returned, a 
net loss of more than a million. These emigrants were 
largely from the farms. They were young in years and the 
men outnumbered the women by far. The economic condi- 
tions, which drove them to seek their fortunes in a strange 
country, forced those who remained to defer their marriages 
until they were better able to support a family. The desire 
for a higher standard of living, and the transition from an 
agricultural to an industrial society also operated to limit 
the family. Were it not for the fact that Sweden has such a 
low mortality rate,^^ and, in consequence, such a long ex- 
pectation of life (an average of 54 and one half years for men 

^^Ibid, p. 583. 

i-'^See motion by Senators von Koch and Petren, Forsta. Kammarcns 
Protokoll nr. 28, 1920, p. 82. 

^*'Guinchard, J., op. cit. vol. I, p. 134, table 23. 

^^^14.89 deaths per thousand of population in the decade, 1900-1910, the 
lowest ever observed in any European country, Scandinavia excepted. In the 
age group 0-5 years, the mortality in Sweden is 41% lower than in Western 
Europe, 34% lower than in France and 31 % lower than in England. In 
every age group between 15 and 75 years, the mortality is 25% lower in 
Sweden than in Western Europe. Ibid., p. 138. 



110 Marriage and Divorce 

and 57 years for women) the genetic growth of the country 
would practically stop. 

What has happened as a result of the conditions brought 
out by these figures? The existence of a large surplus of 
women without any opportunity to establish a normal fam- 
ily life, caused their early absorption by the rapidly develop- 
ing industries, and the relatively high marriage age gave 
most women an opportunity to be independent, in some way 
or other, before marriage, if they married at all, facts that 
have contributed greatly to the purposeful agitation, which 
the women have carried on for the improvement of their 
position. Woman's work, it has been said, is in the home. 
This is no longer such a self-evident truth as it was a hundred 
years ago. Her occupation as housewife, a dignified posi- 
tion, which requires a varied ability, has been much en- 
croached upon by our modern industrial life. She was form- 
erly occupied in the home with the preparation of food, the 
making of clothing, etc. Today the clothing is made in 
factories, and much of the food in dairies, canneries, and 
other industrial establishments. It was as natural for the 
woman to follow her job out of the home as it was for the 
man to do so, when the industrial revolution came and crush- 
ed the handicrafts. It is therefore not to be wondered at that 
we find women composing almost the entire working force 
in the textile and clothing, dairy and food industries. In 
1918, three fourths of the textile and clothing workers were 
women, while in the tobacco factories 85 percent of the work- 
ers were women; in the chocolate and candy factories, 83 
percent ; in the paper box industry, 65 percent ; in the dairies 
65 percent ; in the fur trades and the liquor trades, 62 per- 
cent; etc.^* The last couple of decades have seen the women 
in mines and factories increase from 38,877, in 1901, to 50,516, 
in 1918, or about 13 percent^'' of the entire number of workers 
employed in gainful occupations, a figure which would be 
probably seven or eight percent higher did it include women 
workers in other fields. 

The need for the organization of these workers was felt 
already in the eighties, but it was not until 1902 that the 
Women's Trade Union was formed. It grew out of the ef- 

'^^Sociala Meddelandcn, nr. i, 1921, p. 35. 

^^This includes only women of age. If those under age are included, 
the figure would reach 61,187 for 1918. Ibid. 



Legislation in Sweden 111 

forts of Stockholm's General Club for Women to organize 
the women workers of that city. It had but a short existence 
and in 1908 it merged with the Tailor's Union. The Federa- 
tion of Labor made early attempts to organize the women, 
and was very successful.-" In 1907 over 12,000 women be- 
longed to the Federation, but the big strike of 1909 more 
than cut the number in two. At the end of 1910, 5,715 had 
joined, a figure which reached the grand total of 32,787, at 
the end of 1920,'-^ and undoubtedly represents more than 50 
percent of the women workers, probably a greater percent- 
age than found in any country outside of Scandinavia. 

The dependence of women was felt early. Unmarried, they 
were the wards of their fathers and married they simply 
changed guardian. True to the belief that woman is created 
for man, she was given the training necessary to make her a 
good housewife and mother. Her aspirations to enter the 
domain of the man and compete with him in the trades or 
professions were discouraged and often derided. All her 
efforts to have the guardianship exercised over her lifted 
when she reached mature age were successfully resisted. 
The paternal attitude maintained in the matter by her op- 
ponents, is seen in this opinion of the Gota Appellate Court 
in 1826. "As a ward, the woman, closely bound to her fam- 
ly circle, has so far avoided the temptation of trying to create 
her own happiness through the inheritance received from 

father or mother She has been saved the sorrow of 

weeping over the results of badly planned enterprises and 
carelessly assumed obligations; in short, she has not yet 
known the extent of her own weakness. Led by the faithful 
hand of friendship, to which the law has entrusted the care 
of her property, she has avoided falling victim to the evil 
plans of the tempter, and has, when she sooner or later enters 
marriage, not brought with her the idea that the mature wo- 
man is as good as the mature man. Instead, she has regarded 
her husband as her chosen guardian, who out of love and 
friendship has taken care of her affairs, and has been fired 
by the true feeling of submissiveness, which shall always be 
the necessary basis for happiness in marriage.""" It was 

2'JMeyerson, Gerda, Arhctcrskornas vdrld, p. 153 et seq. 

^^Berdttelse over Landsorganisationens verksamhet dr 1920, pp. 66-67. 

22Linder, Gurli, Kvinnofrdgan i Sverige, 1845-1905, pp. 11-12. 



\ 



1^2 Marriage and Divorce 

this widespread attitude that Fredrika Bremer's facile pen 
tried to change. 

i^ / ^t 's interesting to note the importance which writers have 

had in furthering the movement for women's independence 
m Scandinavia. The pioneer work of Fredrika Bremer in 
Sweden and Camilla Colett in Norway foreshadowed the 
active propaganda by Strindberg, Ibsen, and Brandes and a 
host of lesser lights. Fredrika Bremer was most concerned 
with the position of the young girl in the home, unable to 
have her personal wishes fulfilled, when they conflicted with 
those of her father. In a novel, Hertha, published in 1856, 
she pictured this situation and was met by the most bitter 
criticism, a proof of the bravery of her action. She severely 
shocked the sensibilities of her male readers by making the 
heroine desirous of studying medicine and anatomy an'd by 
permitting her to bandage the knee of a wounded fireman 
If it had been the foot but the knee— that is going a little 
too far," said an outraged critic who claimed that he had never 
found a girl in the age of ten to thirteen, who had had in- 
clinations and ability for a deeper study of the sciences. 
I he best way and the only way by which a married woman 

^.^" "^^^e a contribution to society is by faithful and 

silent (nota bene silent, mademoiselle Bremer) performance 
of the duties in the home."-^ 

The work of Fredrika Bremer bore fruit. Her emphasis 
on the necessity of providing women with a better educa- 
tion resulted in their admission to professional schools and 
her labor for the removal of the guardianship over the un- 
married women undoubtedly hastened the legislation in this 
respect. Already in 1845. a law had been passed giving a 
sister equal rights of inheritance with her brother, thereby 
changing a law, which had remained in force since the thir- 
teenth century, which gave a brother the right to inherit twice 
as much as his sister. Ten years later, during the Riksdag 
ot 1858, the unmarried woman was given her independence 
at the age of twenty-five, which age was lowered to twenty- 
one in 1884, thereby made to correspond with that of the 
man. Fredika Bremer herself was influential in the estab- 
lishment of the Teachers' College for Women in 1861 In 
1870, the universities were opened for women and in 1884 
-^Ibid, pp. 14-15. Quoted. 



Legislation in Srvcdcn 113 

the University of Stockholm appointed Sonja Kowalewski 
to a Professorship, the first European university to accord 
such honor to a woman.-* Since then the development has 
been rapid, until at present the bars have been lowered in 
all but a few cases. The State Church, for instance, has not 
yet decided to permit the ordination of women as pastors. 

The work of the various organizations by women for the 
purpose of improving their political and social status has 
been highly successful. The first association of this kind was 
the Society for the Married Woman's Property Rights, es- 
tablished in 1873. It was the result of the neglect which, in 
the fight for the independence of the sex, the married women 
had suffered. It is, of course, natural that the emphasis of 
the pioneers should have been placed on freedom for the 
unmarried women, because of the special problems created 
by their great number and their preponderance over men. 
In 1895, the Society merged with the Fredrika Bremer So- 
ciety, founded in 1884 for the purpose of promoting "a sound 
and rational development of the work for the advancement 
of women, morally and intellectually, as well as socially and 
economically." The latter has had a very successful career. 
The Social Democratic women have organized into one 
body, which in 1914 had some fifty local branches. ^^ 

It was not until 1902 that an organization for the promotion of 
woman suffrage was definitely formed. The National Society 
for the Enfranchisement of Women has not spent all its ef- 
forts on political agitation alone. Through its locals, it has 
spread the knowledge of social problems by discussion groups 
and lectures and has taken active interest in social work. In- 
cluding the above mentioned societies, the number of women 
organized to gain political recognition was about 35,000 in 
1914. The efifect of their concerted efforts, primarily in the 
educational field the militant suffragette being unknown in 
Sweden, was a series of cocessions ending with a constitu- 
tional amendment in 1920, which gave the women the right 
to vote in national elections, their right to do so in communal 
elections having been given them years before. In 1922, two 
Social Democratic women, two Liberals, and one Conserva- 
tive were elected to the Riksdag.^® 

^^Guinchard, J., op. cit., p. 735 et. seq. 
^^^American-Scandinavian Reviexv, January 1922, p. 41. 



114 Marriage and Divorce 

It is impossible to write about the progress of the femin- 
ist movement in Sweden without mentioning the contribution 
of Ellen Key. It was with apprehension that she viewed 
the indiscriminate demands of the early feminists for abso- 
lute equality with men in all fields of labor. She severely 
criticized their desire to imitate the man, instead of demand- 
ing freedom of opportunity and recognition of individuality, 
without sacrificing the home, which she considered the pro- 
per sphere for the woman. She became the champion of a 
glorified motherhood. To her the rights of childhood were 
even greater than the rights of women, and her influence 
is clearly seen in the child welfare legislation of the last 
decade. Her enemies, particularly numerous after her famous 
lectures in 1895-96 on "Misused Womanpower" and "The 
Natural Spheres of Labor for Women", have gradually come 
to appreciate the great value of her untiring efi^orts to realize, 
not so much political equality, as the opportunities for women 
to gain intellectual and moral freedom. 



It is these movements that have colored the recent social 
legislation in Sweden. Their influence is unmistakably pres- 
ent in the Old Age Pension Law of 1913, in the Eight-Hour 
Laws of 1919 and 1921, in the Law of 1917 concerning Chil- 
dren born out of Wedlock, in the Poor Law of 1918, in the 
recently proposed Child Welfare Law, and finally, in the 
Marriage and Divorce Law of 1915 and the Law of 1920 
concerning the Married Woman's Status. In a recent article 
in the Forum, a liberal monthly, a writer asks, "Who will 

question the statement that the socialistic labor politics 

has raised human values and filled cultural needs, that it has 
sharpened the social conscience and given rise to the pro- 
tective legislation of today; that it has encouraged equality 
before the law and prepared the way for a general democratic 
development; and, that it has organized the scattered groups 
of guerilla warriors in the labor markets into well disciplined 

armies? Who will furthermore deny that the political 

movement among women has freed civic rights from the 
bond of sex; that it has given to the mothers and the 
children of the nation the legal protection necessary for the 
budding life of the group; that it has transformed marriage 



Legislation in Sweden 115 

legislation from a jurisdiction by patriarchs and pashas to 
one between free and equal individuals; and, that it has called 
the attention to and aroused interest in the various problems 

arising out of the surplus of women? The movement 

for the emancipation of women and the labor movement have 
deepened the public sense of justice and enlarged the social 
horizon, no matter what may have been their faults. "^^ 

It has been said that nothing shows the stage of a na- 
tion's progress toward social justice better than the position 
of its women. If that is true, the passage of the marriage 
and divorce laws of Sweden indicates that the social develop- 
ment of that country has reached a high stage. But perhaps 
these laws are simply the work of a certain political group? 
Criticism to this effect was heard at the time they were 
passed. It was said that public sentiment would not support 
them, because they were foreign to public opinion both in 
principle and in details. Laws, however, have not been rash- 
ly made in Sweden, a country whose people has of old been 
noted for justice. When the rest of Europe, during the Mid- 
dle Ages, was devoting its time to the development of trou- 
badour poetry, the literary efforts of the Swedes were spent on 
the formulation of their Provincial Laws, some of which can 
truly be called masterpieces, of which it has been said that 
they lack their equal, at least in Teutonic countries. It was 
this appreciation for justice that received expression in the 
"Rules for Judges", dating back to the i6th century. These 
rules, so excellent that they have been given a place in every 
edition of the Swedish Code up to this day, maintained that 
when a law becomes harmful it is no longer a law but an 
anti-law and should be speedily abolished Public wel- 
fare is the greatest law and what is, therefore, found to 
promote the welfare of the people shall be law, even though 
"All laws shall be such that they serve public welfare and 
the written law, in its wording, seems to prescribe different- 
ly."-* Finally, the method of drafting and initiating legisla- 

^''^Fogelquist, Torsten, Samhdllspolitik och klasspolitik. Forum 
(Stockholm) January 1922, p. 38. 

^^Domare-Reglor, see Sveriges Rikes Lag, Schlyter's ed., 1886, 
Bihang, pp. 558-59. 



116 



Marriage and Divorce 



tion has aided in producing laws that have not been ac- 
cepted until they have been found to be in accord with public 
opinion, particularly since the people have always maintained 
a deep respect for law. The knowledge of this national char- 
acteristic has made the legislator wary in the promotion of 
legislation that might injure this feeling, and, in consequence 
encourage lawlessness and distrust. The Law Commission 
time after time reiterated that the marriage and divorce law 
was simply the codification of current practices and beliefs. 
I he law IS only a memorandum," says Emerson "We are 
superstitious and esteem the statute somewhat; so much life 
as It has in the character of living men is its force." 

* * * 

We are living in an age when mere authority is becoming 
more and more questioned. The individual is no longer 
taught to conform, but to differ, as long as his dift'erence is 
conducive to group welfare. We no longer believe that it 
IS necessary for the individual to sacrifice his freedom to 
benefit society; only by enlarging his freedom and creating 
new opportunities for its exercise does society make perma- 
nent gains. The link, which binds people together is com- 
munity of interest. In the light of a common interest an 
understanding of one another's problems, an appreciation of 
one another s difficulties is created. The more numerous a 
person s interests, the greater is his understanding and sym- 
pathy, and the wider his appreciation. With the growth of 
interests, therefore, his personality is enriched and he -ains 
as an individual, a freedom, which ignorance and po^'verty 
of interests have denied him. He becomes, as a result a 
better member of society, since the quality o f the society 'he 

rerfinl^ '?'''^' ^T ^,'^^''"^ ^^^''^ P^^^P^^^^ ^" l^^^'^' according to di- 
rec .ons given. These laws are passed on by the Law Council composed 
of three justices of the Supreme Court and one of the Crown CoTrr If 

tTtwT'T^'l' '^u'^ "'■^ ^'"^^^^^d ■" R°y^l propositions to the Riks- 
dag, which acts. In the case of laws of special importance, as the n^ar- 

compoTed oTeTne'r^'- ^'^ °'' ^^'. ^^^^^ '^^^ ^'^'^ special TommisTn 
composed of experts is appointed. This commission begins researches 

studies of experiments already made in other countries !tc and finally 
makes its recommendation, substantiated by all special studies made This 
report is usually submitted to a few hundred or more officials and othe s 
Ihrr'enort ^^'7"^^-^ ^^e country. They are given ample t^e to read 
t therlK .""^u- ^"^8^^^'°"^' ^vhich are then taken into consideration 
by the Cabinet, which prepares the Royal Proposition. It is a lengthy 
process, but serves its purpose. lengxny 



Legislation in Sweden H' 

lives in will be determined by the quality, the number and 
the range of his interests. Society is then, in the last analysis, 
within its members and the rapidity of social progress is 
dependent on the number of individuals in the g^o^P'/^^o 
have come to realize keenly their interdependence and the 
necessity for mutual understanding and aid. The most sig- 
nificant movement in modern life is the rise of an individual- 
ism, which does not pursue the tactics of the devil take the 
hindmost" but is mindful of the rights of others. ^ The idea 
that it is the right, or even a duty, to assert one s own in- 
dividuality is characteristic of our age. 

The social setting of the marriage and divorce law, which 
has formed the subject for this monograph, is then clear. It 
is simply an expression of "the struggle of the spirit of man 
or freedom", a very good evidence of a nation s progress 
toward social justice. There have been favorable conditions 
for this progress in Sweden, one of which is a liberty loymg 
people that has not known subjection by foreign masters, 

another being the appearance of ^^^^^^1" ^^^^ P^°^^t?''hn, 't 
cussed in this chapter, that have inevitably brought about 
the recognition of mutual rights and duties and an increasing 
need for freedom of individual growth and expression. The 
Swedish nation has apparently recognized that it is m tlie 
promotion of agencies to meet this need for growth and ex- 
pression that social institutions find their greatest service. 
The recent social legislation shows that a consciously directed 
progress is gradually bringing the nation to a higher stage of 
civitization, which means "that personality is liberated with- 
in society ; that, finding its significance withm itself it more 
freely relates itself to, and cooperates with, vhat of _ others ; 
that, therefore, order ceases to consist in uniformity and 
suppression and becomes a condition of liberty, being based 
more on conscious common will and less on an institutional 
acceptance of tradition ; that the sanction of conduct is more 
the inward sense of responsibility and the application of the 
necessary ways of adjusting means to ends. It means that 
there is a greater respect for personality; that persons are 
both recognized and recognize themselves as being ot in- 
trinsic value and not merely the means by which the ends 
of others-kings or priests or slave masters-are achieved, 

30Westermarck, E., The History of Human Marriage, vol. 3, P- 372. 



118 



Marriage and Divorce 



or else by which some impersonal and fantastic purpose, the 
'glory' of the tribe or even of God, is supposed to be served. 
It means that caste is absent; that accidental or extrinsic dif- 
ferences count for less; that opportunity is widened. It 
means, therefore, that women are less disqualified because 
of sex ; that the poor are less dishonored and disfranchised 
because of poverty and the alien less despised because of his 
origin. It means that life and health are more esteemed and 
guarded. It means that men are less enslaved by the primary 
necessities and so are able to pursue the wider and higher 
interests, which reveal themselves as the former grow less 

insistent The likeness of all men will be the basis of 

order, while their differences will be suffered to express 
themselves, in so far as they are not clearly anti-social, 
and to contribute to the whole that unique element of worth 
which resides in free personality, the origin of all permanent gains 
of civilization."^^ 



-. ! 



siMacIver, R., Elements of Social Science, pp. 123-4. 



BIBLIOGRAPHY 



Ainerican-Scandiimvian Rcviciv, New York. Dec. 1921 and Jan. 1922. 

Andra Kammarcns Protokoll, nr. 71, 1915 ; nr. 40, 1920. 

Berdttelsc over Landsorganisationens verksamhet dr 1920, avgiven till 

Reprcsentantskapcts mote i april 1921. (Page proofs) 145 p. A.-B. 

Arbetarnes Tryckeri. Stockholm, 1921. 
Ekeberg, B., Aktenskapslagstiftningen. 84 p. Tryckeriaktieb. Fylgia. 
Article in Aftonbladet. Februari 20, 1920. Stockholm, 1915. 
Fackforeningsrorelsen. I. Sverge. 264 p. — cvi — 8 diags. Tidens forlag. 

Stockholm, 1912. 
Flodstrom, I., Svergcs folk. 621 p. Almquist & Wicksell. Uppsala och 

Stockholm, 1918. 
Fogelquist, Torsten, Samhdllspolitik och khisspoUtik. Forum (Stock- 
holm) 8:37-48, January, 1922. 
Forsta Kammarens Protokoll, nr. 63, 64, and 75, 1915; nr. 28 and 34, 1920. 
Forsta Lagutskottets utldtande nr. 27, 1920. 
Guinchard, J., ed., Sweden. Historical and Statistical Handbook. Second 

ed. 2 vols. Norstedt. Stockholm, 1914. 
Hedren, T., Lagtima riksdagen 1908. Kortfattad uppslagbok. 175 p. A.- 

B. Akademiska bokforlaget. Uppsala, 1908. 
Howard, G. E., A History of Matrimonial Institutions. 3 vols. Univ. of 

Chicago Press. Chicago, 1904. 
Ktingl. Maj-.ts nadiga proposition till riksdagen med forslag till lag om 

dktenskaps ingdende och upplosning m. m. ; given Stockholms slott 

den 29 januari 191 5. Bihang till riksdagens protokoll 191 5. i saml. 

13 haft. (nr. 18) 119 p. 
Kyrkolagutskottets betdnkande nr. 19, 1915. 
Lagberedningens forslag till revision av giftermdlsbalken och vissa delar 

av drvdabalken. 

I. Forslag till lag om dktenskaps ingdende och upplosning m. in. 751 

p. Norstedt. Stockholm, 1913. 

IV. Forslag till Giftermdlsbalk m. m. 722 p. Norstedt. Stockholm, 

1918. 
Lagutskottets utldtande nr. ^2, 1900; nr. 38, 1904; nr. 32, 1915. 
Linder, G., Kvinnofrdgan i Sverige 1845-1905. 59 p. Wahlstrom & Wid- 

strand. Stockholm, 1905. 
Maciver, R., Elements of Social Science. 186 p. Methuen. London, 1921. 
Meyerson, G., Arbeterskornas vdrld. 172 p. Geber. Stockholm, 1917. 
Nordisk Familjebok. 20 vols. Gernandt. Stockholm, 1876-1899. 
Sociala Meddelande utgivna av Kungl. Socialstyrelsen, nr. i, 1921. Nor- 
stedt. Stockholm. 
Stadgar for Landsorganisationen i Sverge .... antagna i augusti 191 7. 

22 p. A.-B. Arbetarnes Tryckeri. Stockholm, 1920. 
Stael von Holstein, M., Malsmanskapet och kvinnans sfdllning inom- 

dktenskapet enligt gdllende svensk rdtt. 46 p. A.-B. Ekmans forlags- 

exp. Stockholm, 1908. 



120 Marriage and Divorce 






Statistisk Arsbok for Svcrige 1920. (proof sheets) Nortstedt. Stockholm. 

Stenbeck, E., Den nya dktenskapslagen och kritiken ddremot. Eit fore- 
drag. 32 p. Lars Hokerbergs forlag. Stockholm, 1920. 

Stjernstedt, G., Den svcnska kvinnans rdttsliga stdllning. 81 p. G. W. 

Wilhelmson. Stockholm, 1904. > 

Svensk Forfattningssamling, nr. 480, 481, and 485, 1915; nr. 405-434, 1920. ' 

Sveriges Rikes Lag, till efterlefnad stadfdstad dr 1736 etc. J. IV. Schly- ' 

ters ed. Tredje up p lagan tit given av F. O. Leuhusen. 496 p. Bihang, 
650 p. Haeggstrom. Stockholm, 1886. 

Soderberg, E., Svensk arbetarrorelse. Foredrag. 16 p. A.-B. Ekmans 
forlagsexp. Stockholm, 1907. 

Westermarck, E., The History of Human Marriage. 3 vols. Macmillan. 
London, 1921. 

Williams, M. W., Social Scandinavia in the Viking Age. 451 p. Macmil- 
lan. New York, 1920. 



•i 

& i 



APPENDIX 



The New Marriage Law 

The Marriage Act of June 11, 1920 



Legislation in Sxvcdcn 123 



CHAPTER I. 

Betrothal 

Par. I. Betrothal exists when a man and a woman, in the presence 
of witnesses, by exchanging rings, or otherwise, have signified their deci- 
sion to enter matrimony. 

Par. 2. If one of the betrothed dies, the survivor may claim the 
gifts given the deceased in view of the marriage and yet keep the gifts 
he himself has received. 

If the betrothal is dissolved, both may demand the return of their 
respective gifts. This right does not exist for the one, who is principally 
the cause of the dissolution. 

Par. 3. If children are conceived during the betrothal and this be- 
trothal later dissolved principally due to the fault of the man, he must 
pay the woman reasonable damages. Such damages may be ordered paid 
in a lump sum or in installments. 

If, for any other reason, one of the betrothed is principally to blame 
for the dissolution of the betrothal, the other may be adjudged damages 
only to the extent of expenses incurred as a result of actions taken in 
view of the intended marriage. 

Par. 4. He, who according to Chapter 2, paragraphs 2 or 3, is for- 
bidden to marry without the consent of parent or guardian, need not pay 
damages as stated in the second section of paragraph 3, unless he had 
such consent to the betrothal. 

If the man, in cases referred to in section one, paragraph 3, was un- 
der eighteen j'ears of age at the time the child was conceived, he is not 
more liable for damages than if no conception had occurred. 

Par. 5. If anj' one wishes to press claims on the basis of paragraphs 
2 and 3, such claims must be brought within a year from the time the be- 
trothal was dissolved. If a year is allowed to elapse, the right to recover 
damages is lost. 

Par. 6. If children are conceived during the betrothal or if the par- 
ents become betrothed after the conception and such betrothal is dis- 
solved through the death of the man; and, if the woman is in need of 
support, she may receive a reasonable part, though not more than half, 
of his property, if she makes her claim before the administrator of the 
estate, the court, or the judge within six months after his death. 

CHAPTER 2. 

Impediments 

Per. I. A man under twenty-one years of age and a woman under 
eighteen can not marry without the permission of the King. 

Par. 2. No one under twenty-one years of age, who has not been 
previously married, can marry without the consent of parents. 

If one of the parents is dead, insane, feebleminded, or without share 



124 



Marriage and Divorce 



in the guardianship ; or, if word can not be had from one of them without 
great delay or in a roundabout manner, the consent of the other is suf- 
. 'fu^j I u f^?'^ conditions exist in regard to both parents, the be- 
trothed shall ask the consent of his guardian, or, where a special guard- 
ian has not been appointed, of some one appointed by the court upon ap- 
plication, f 1/ 

Par 3. No one, for whom a guardian has been appointed, can marry 
without his guardian s consent. 

Par. 4. If consent is denied in cases mentioned in paragraphs 2 and 
3, the court may upon application permit the marriage, if it finds that 
there was no reason for the denial. 

Par. 5. An insane or feebleminded person cannot marry 

Par. 6. A person suffering from epilepsy, which is mainly due to in- 
ternal causes, or venereal disease, which is in an infectious stage, can not 
marry unless the King finds reason to permit the marriage 

Par. 7. Marriage is forbidden between persons in lineal descent or 
ascent and between brother and sister. 

Par. 8. Marriage between uncle and niece and aunt and nephew can 
not take place without the King's permission 

marrfeTtn fH^"!^^^' '' forbidden between persons, one of whom has been 
married to the other s relative in directly ascending or descending line 

^ar. ID. No one can remarry, while an eariier marriage is undissolved. 
. .u r ^^o"^^"' who has been married, can not remarry within 

ten months from the dissolution of her earlier marriage, unless it is 
proved that she is not pregnant from the period before the dissolution, or 
that ten months have passed, since she cohabited with her husband 

^h\).Tu ^^A ." T^ ^^}^-^ ^""^ '^' adoptive parent can not marry, 
while the adoptive relationship exists. 



CHAPTER 3. 
Publication of Banns 

Par. I. Banns shall be published in the Swedish congregation where 
the wonian is registered, or, if she neither is nor shoufd be registered 
there, where she resides. icgiaLcicu 

Both betrothed shall apply for publication to the minister in charge 
of the parish records. i-nctigc 

h. if ''''■ •^; ^T- ^' ^'hen the man applies for publication, he shall, if 
he IS registered in some other Swedish parish than the one mentioned in 
paragraph i, bring a transcript of his parish record showing his quali- 
fications for the marriage. ^ 
no • I" ^^^\3, betrothed neither is nor should be registered in a Swedish 
parish, he shall present a corresponding certificate from foreign reoistrv 
t,.. \u ^he parish record or the above mentioned transcript does 
not give the age of the betrothed, he shall present other evidence in this 
respect. If he is under age, he must prove that the King's permission has 
been given in accordance with Chapter 2, paragraph i. 

_ Sect 3. If a betrothed, according to Chapter 2, paragraphs 2 and 
3, IS not allowed to marry without the consent of parents or other guard- 
ian, he must show that such consent has been given or that the court has 
given permission to the marriage, according to Chapter 2, paragraph 4 

i..u}'-' a'a f 'f ""t^'"" ^° believe that the betrothed is insane, or 

feebleminded; or, if the betrothed has been insane within the last thr?e 



Legislation in Sweden 



ye,rs he shall show a medical certiSeate .hat he is not insane or feeble- 

"'"st,. 5. H a betrothed is ^""s "not^ "aff.S'^wi* etuepsr^Tiniy 

^„f t=o^'i„r!f^^st^-S?hris^'hrsh"^. ^pSS-an ata/av.t that he is 

not afflicted with epilepsy, as far as he knows ^^^ ^^^_ 

Each betrothed shall also P'«"' ="„ =f '.,^"' a" far as he knows. 

'""Ih^'X^e^Trs'/oTora^-piriA^r^tferpresents a Royal per- 

"'-?:,'rBoS'bX?d^hy'p^9ra«ida^^ 

according to Chapter 2, paragraph 8, no reJationsnip 

e.ists,^as far a^^^A'^^I^Xd must by affidavit show whether or no, he 

"" \Tl ZZ:S^^ -/"=^-C=.h^aTlt'rrfi'a,"e' t\ XZ 
Sled'r?h1d'"a.ro'r*e' s^p^nse°'ortther*?k'he shali present proof 

to that effect. ^orriprl and the parish record or the 

Sect. 8. If the woman has been "^^"^^^ ,^!f^;^that an impediment o£ 
rStTSldln^ChapSTparta^ ifr: n*t%.ist, sh^e shall pre- 
sent proof to that effect ^.^1^ paragraph 2 and the 

^iniSj-d^oel^S^fi'nn^nrpedi^en.^^^ 

?■o^tVTh"e1r VrU'.^sSer-and'^Srre that the banns are pub- 
"-iJlir^nbtS, *^". -VrlfPf a^^^n n. be gran.d pnb- 

•^;^^^hr,a-^= tS^s3 .^^ 

fa^il^'h^s ten^''.:;l'ty*at*no t^^ ?o«rf=n,arriage f.ists. 
<'^'t"r'6= ff TtSr^d is .^angerous^^ ill ,0Vf^*e ,.an is ca,.d to 
arn,s^aga.ns.^,he^enen,y, -™f .-ssnt/tfa-be^^othed Lless the one 

he is to marry gives his approval. ^^ ^^^^ 

this rule no longer applies. 



126 Marriage and Divorce 

.r.A ^%'a ^••/'^'"'■^ ^^^"jt^ regulations regarding transcripts, certificates 
and affidavits, mentioned in this Chapter, will be made by the King. 

CHAPTER 4. 

The Ceremony 

mon^'"'' '■ -^^^'''^^^ '' ^"^^""^^ '"^« by means of civil or religious cere- 

rv, ^(^''•.f. A. '■el'^'ous ceremony may take place within the Swedish 
Church, if both betrothed are members thereof or if one is a member 
the other belonging to some other Christian faith; within any other de- 
nommation, to the ministry of which the King has given the right to per- 

ifT/d'I^'°"'."'''"''';?^'''^-^°'^-r^''" "^^^^^'^ of that denomination, or, 
If the denomination is Christian, if one belongs to it and the other is a 
member of some other Christian faith. 

The King may decree that a member of a foreign Evangelical Lu- 
theran denomination shall be given the same right to a relifous cere- 
mony as a member of the Swedish Church. reiigious cere 

Chnrch\t W t^he celebration of the ceremony within the Swedish 
Church, the betrothed may choose any minister of the Church. No one 
however is duty bound to officiate except a minister of the cong egadon 
of which either betrothed is a member. cg<iuon 

Within other denominations, the ceremony shall be performed by a 
duly authorized minister of the denomination 

Par. 4. Regardless of the eligibility of the betrothed for a religious 
ceremony, a civil ceremony can be used. reugious 

■,^ S^' ^'P^ following are authorized to perform the civil ceremony 
chatrmT^f .h '"T^'^^ magistrates, or, where such are not found, "he 
conntv nr ^ '!!'' '1^"""'= '".'^' ^°""^^y' ^he public prosecutor o the 
^Tfin-?'/^"'! ?' King permits it, a special functionary appointed for 
a definite district by the Governor. pp^^mucu lor 

n.n7^^ t'^\ ""^ T °^^^'^' ^^ perform a civil ceremony does not de- 

^ I?"th.V''V^'' ^''^^' ^^ '"^^ ^^^^°thed is a resident of his district. 

If the county prosecutor resides in a town, he may also perform 

" tTeTetrZed" ''m ^°^"; b"; he is not duty bound to do so unless on" 
ot tne betrothed resides in his district. 

Par 6. If conditions mentioned in Chapter 3, paragraph 6 do not 
exist, the ceremony shall not be performed unkss the publication o 
banns has been completed. Even then the celebrant mav refuse ope?- 
oTa re'rf?/'?°"v' '^ Kr ^""^^'^ °^ ^" impediment to the marriage. VVith- 

excentiofof L°l,^ '''"T T °"l'^^" P"^«™ ^ ^^'^'^^^^ with the 
exception of the minister who has charge of the parish records of the 
parish where publication was made recoras ot the 

Par. 7. li the betrothed wish to marry without previous publica- 
not"i:e/".H "'\"''' '''/^^'^ ^' P^'-^^'-^Ph 6' -d if the celebrant do^s 

IS etSr d'in Yf Tu^"' -'V'^'" ^' '^^ ^'"^^ °^ ^^e betrothed, who 
is registered in a Swedish parish, to present a transcript. 

mcntToned'in rh''!i''"°"'' '' Performed, the prerequisites to publication 
mentioned in Chapter 3, paragraphs 2 and 3, shall be met. 



127 

Legislation in Sweden 



Par. 8. The ceremony shall be performed in the presence of rela- 
tives or other witnesses. betrothed shall appear before 

„i,hin the Swedish Church the ^^ ™=i';"^,; „ „,her denominations. 
?erre,£ous'Ll;'«r:nd,t 'the dvire/entony. the ™,es .iven h. the 

•^'"Ve n,i„i_s.er. who has peKonned ^^^^^^ZTL'^^il.lT^'^^ 
Sr.'h';'d:Tcer:n7X.rhfe";:;ed^in'a specia, re.s.e. acco.d.n, 

to more definite rnles S"?,",)'-"; *^ ^'i"/-; „„, performed by an a.ithor- 
Par. 9. A ceremony shall be mvalici .1 not P^ different 

ized minister or by proper c,v,l o«='>l »' s Son wo. A ceremony, 
manner from the one specified '-/"S'^VVuse o" fadnre to comply 
however, shall not be considered mvahd ^^f^^^" ^^^ ,^„eded his 

CHAPTER 5. 

GENERAL RULES ReCARBXNO THE LeCAL RELATIONS OE HUSBANO AND WiEE 

Par I Husband and wife owe each other faithfulness and assistance. 
ThefThaU worl together for ^he welfare of the fam.ly ^^^^^^^ 

Par. 2. With money by f ^ivity in the home or othe ^^^.^^^^ ^^ 
and wife are, each accordmg to ^'^^^jaity bound m duty ^^_ 

the maintenance of the f^^^^^^L^^^^^^.^^ f ^^.i^en^^^^^^^ which is required 

ting to their station of hfe^ fu^/home and for the education of the ch 1- 
^^t.':^.;^^ol^or'Z^:^ needs of husband and wife, 
shall be considered. cnnn^p according to paragraph 2, 

.rer^s„LVenf.r;rrnij«=^ 

supply him w.th the "=«'f;7 "'=^''"/, 'j!.,"^^'"; Tspouse, who has shown 
S^r'to 'ha'nX-lney'r tU^'^Tsom^ o.h^r reason, should no. 

•^^"ta *: Tfa-TSln accordance -'h P-graf s^^^ -^3 has bee^ 
,i.en by ^-,spouse to the other for per^^nal^ne^^^^^^ the^.-_;^- P P,„| 

to com ib^ne".o^h^s"np;ort^f fhe family he shall. H^^e -h. '-nds 
it, be ordered by the conr. ,'°/^v-« contr,b.*ons^for^e^P 
"po"nTim'rlhi:h'r'c';u*t\"d:' should be entrusted to him. under .he 

circumstances. j„^;„o- tVip calendar vear expended 

Pny h Tf one of the spouses has during tne caienuar ^cdi y 
.„rflor'th"pro"p'er\amte ance of the fami,,^.han he .^ 

»«-i"^I° ?"!,^:±5s''c,n"^b -assire/nr been intended, obtain 



or under the circumstances can be ass 



128 Marriage and Divorce 

compensation from the other for the amount of such expenses, which 
may be considered devolving upon the latter. 

Suit for recovery cannot be brought later than one year after the 
calendar year. 

Right to compensation can only be exercised by the one entitled to it, 
neither can compensation be demanded in case of the bankruptcy of the' 
one liable for its payment. 

Par. 7. If husband and wife live apart on account of dissension it is 
nevertheless the duty of each to contribute to the other's support on the 
basis of grounds stated in paragraph 2. If, however, one of them is the 
chief cause of the rupture, the other is not duty bound to assist in his 
maintenance unless special reasons are found. 

As to contributions to the support of children in cases referred to in 
the above section, the Law regarding Children in Marriage shall be fol- 
lowed. 

Par. 8. In cases referred to in paragraph 7, a spouse may, in so far 
as It IS found reasonable with respect to the living conditions of the 
spouses and other circumstances, be obliged to deliver, for the use of the 
other, chattels, which, when the separation occurred, was part of the 
household goods intended for the joint use of the couple or which con- 
stituted the tools of the other. If property belonging to a spouse has thus 
been turned over to the other for his use, an agreement, which the owner 
enters into with a third person regarding said property, shall not lead to 
a limitation of the right to its enjoyment by the other spouse. 

Par. 9. In spite of what the court may have decided in regard to con- 
tributions mentioned in paragraphs 5 or 7, the court may change its ruling 
on the demand of either spouse, if essentially changed conditions demand 
it. 

Par. 10. Agreements in questions referred to in paragraphs 2, 3, 7, 
or 8, may be adjusted on the demand of a spouse, if the agreement is 
found to be unreasonable or if essentially changed conditions demand it. 

Par. II. Husband and wife are duty bound to give each other the in- 
formation regarding their financial circumstances, which is necessary for 
an estimate of their respective obligations of maintenance. 

Par. 12. Either spouse may, for the daily maintenance of the house- 
hold or the education of the children, with binding effect on the other, 
enter into transactions such as are customary for such purposes. Unless' 
It is otherwise apparent from circumstances, these transactions shall be 
considered made for the purpose of binding both spouses. 

The transaction mentioned is not binding for the other if the one 
with whom it was entered into knew or ought to have known that that 
which was procured through it was unnecessary. 

The contents of this paragraph shall not apply if husband and wife 
live apart due to dissension. 

For. 13. If a spouse abuses the right mentioned in the preceding para- 
graph, he may be deprived of the right by the court, upon the petition of 
the other. 

If changed conditions are proved to exist or if the spouses mutually 
agree, the court may revoke its decision. 

The above decision by the court shall immediately be reported by the 
court to the Alarriage Registry and a notice to that effect inserted in the 
general and local newspapers. 

Par. 14. If one of the spouses, due to absence or illness, is unable to 
take care of his interests and has not named an agent, or if a guardian or 



129 
Legislation in Sweden 

trustee has not been appointed ^^r him f J^^^- s^^^^^^^ fo^ him. 

when an occasion arises which can "^^ ^^*^^ l^ j"^°, ^„d other income 
poned. He may also collect the ^^^^^l^^^Jf^'^.^^^s^'/orthe support of the 
and, if it is absolutely necessary to P'^^^^f .,^'Xr Real estate may on 

sension. -^^^ :c rplphrated the wife shall accept her 

Par m. When the marriage is celeDratea, uic w 

King. 

CHAPTER 6. 

The Property of Husband and Wife 
P„,. ,. Each spouse has a FOpe«y right in .h= P4oPe;.y. -«* *= 
other has at the t.me the ™7'>^= «*« P'^f,^ ^^"^^ y^ ivate as later 
pSvIS "^Sal'^^opS?-:? a"'sp-oX?n ^hiS The cther\as a property 
-'■'A:^S'rri5htXh'cr;rre transferred or is othe^^^ 

'"" ?„'"f A srou'st"n,ust manage his marital property in such manner 
that ft does no, unduly decrease to the ff "■"-' ° 'fj^f^eM „al prop- 

erty- U r o^erira^ o £1^-^^^^^^^^^^^ ^^ 

consented thereto in writing and ^"^^he presence o ^^ 

the latter is absent or under guardian, ^^ ^".yj'^" ^V^^ ^ho desires to 
lii<; consent No special consent is necessary if the spouse wno u 
enter into such a transaction is the "'fefs guarf,an or trus^e ^ 

Tf r, <:nnnse has entered into a transaction as statea in me y'^ 
secti" ^iroufgeutng the -nsent necessary the transact.on ,s . a f 

it is protested by the other spouse, ^'S f >5^'»". " ^Vf,7£„ed ot the 
rra'nsTctL"an7tt",Sr tt? aTa^ f ^ ti-^MmT the conveyance or 
■"""S :Wch"h::teen stated in this paragraph regarding real property 

^.^ oTtcr-an;!:-:,, II:: Tp— .h^ rSt;;tfon or.S 

^^^'%ar c: A spouse may not without the other's consent dispose of or 



130 Marriage and Divorce 

just been said, unless he is insane or feebleminded. If this is the case or 
if consent can not be had without considerable difficulty or loss of time 
such consent shall be regarded as unnecessary. 

If a spouse has entered into a transaction of the nature mentioned 
in the first section without necessary consent and if the one with whom 
the transaction was made did not act in good faith, the transaction shall 
be invalid, if the other lodges a complaint within three months from the 
time he received knowledge of the transaction and not later than a year 
after the delivery of the goods. 

Par. 6. If consent is refused in cases referred to in paragraphs 4 or 
5, the court may permit the transaction upon petition, if it is found that 
no ground for the refusal exists. 

Par. 7. If a spouse has intentionally killed the other, or if he, when 
some other committed the murder, had part in the crime as stated in the 
criminal law, chapter 3, paragraphs 1-6, he shall lose his marital property 
right in the property of the dead spouse. 

Par. 8. Private property is: 

property, which has been declared private by pre-nuptial or post-nup- 
tial agreement ; 

property, which a spouse has received as a gift from some other per- 
son than his spouse, on condition that it remain private, or which he has 
received by will on such a condition, or which he has inherited, provided 
that the testator has by will imposed such a condition ; 

that which has been substituted for property mentioned above, unless 
other provisions have been made in the agreement which made the prop- 
erty private. 

Income shall not, on account of agreements mentioned in this para- 
graph, be private, unless special provisions to that effect have been made 
in the agreement. 

Par. 9. If husband and wife have made an inventory of property be- 
longing to each of them and if this inventory is signed by them under 
oath and accompanied by affidavits by witnesses as to the genuineness of 
the signatures and the date thereof, this inventory shall, in case of dispute 
as to the ownership of property, be prima facie evidence unless it is 
proved or on account of special circumstances assumed that it is incor- 
rect. Presumption of validity shall not, however, be granted the inventory 
in disputes arising in an execution, which takes place within a year from 
the date of the inventory, or in bankruptcy proceedings, which follow a 
petition made within that time. 

CHAPTER 7. 
The Debts of Husband and Wife 

Par. I. Each spouse shall with his private or marital property answer 
for debts contracted by him before or during the marriage. 

Par. 2. If debts have been contracted during the marriage by the 
spouses jointly, they shall be held jointly liable unless other agreements 
have been made. 

This provision shall also apply when one spouse has contracted debts 
for which the other spouse is also responsible, according to chapter 5, 
paragraph 12. 

Par. 3. If the wife is jointly liable with her husband for a debt, which 
one or both of them have contracted by a transaction of the kind referred 



Legislation in Sweden 131 

to in chapter 5, paragraph 12, and if the creditor wants to sue the wife for 
the amount, he must start proceedings within two years from the day of 
payment, or, if the debt is to be paid on demand, from the day it was in- 
curred. If this time elapses, the right to sue her is lost. 

If the wife is adjudged bankrupt she is not in duty bound to satisfy 
a debt with property acquired during or after the bankruptcy, if the debt 
was made previous to the bankruptcy and is of the nature mentioned in 
section one. 

Par. 4. When on account of separation of property, separation, or 
divorce, a division of property has taken place, the wife shall be respon- 
sible for debts, as mentioned in paragraph 3, which have been incurred be- 
fore the petition for the separation of property, separation, or divorce, 
only to the value of the private property, which she owned, when said 
petition was made, the separation secured, or the marriage dissolved, and 
the property, which was given her at the division. If, as a resvdt of the 
separation or the dissolution of the marriage, division of property is not 
to take place, the wife shall, after the separation or the dissolution of the 
marriage, be responsible for debt above mentioned only to the extent of 
the value of the property she possessed, when the separation was se- 
cured or the marriage was dissolved. 

If property, mentioned in the above section, is subject to mortgage or 
is otherwise security for some debt not referred to above, a part of the 
value of the property, corresponding to the amount of the debt, shall be 
left out of consideration. 

Par. 5. That which has been provided in paragraphs 3 and 4 shall 
not apply if the wife has accepted more extensive responsibility for pay- 
ment. 

CHAPTER 8. 

Pre-nuptial and Other Legal Agreements Between Spouses 

Par. I. Betrothed or spouses may by means of pre-nuptial or post- 
nuptial agreements decide that property, which belongs to or becomes the 
property of one of them and which would normally be his marital prop- 
erty, shall be his private property. Through such agreements it may also 
be settled that property, which would otherwise be the private property of 
one of them, shall be his marital property, unless it is otherwise under- 
stood from chapter 6, paragraph 8, section 2. 

Except as to what is above stated, no agreements between spouses 
shall deviate from the contents of this law regarding the property rights 
of spouses. 

Par. 2. If one of the betrothed wishes to give the other property, 
which is to become the property of the latter at the time of the marriage, 
or if one spouse wishes to make such a gift to the other, an agreement 
must be drawn up. Such an agreement, however, shall be unnecessary, 
when it is a question of ordinary gifts, the value of which harmonizes 
with the giver's status in life. 

A promise by a betrothed or a spouse to give the other money or other 
things during the marriage shall not be binding unless compensation is 
made, even though a written agreement is entered into. 

Par. 3. A spouse, whose income during the calendar year has created 
a surplus, may, without agreement or compensation and before the ex- 
piration of the following year, give the other property not exceeding the 
value of half of the surplus mentioned. Such transfer, however, shall not 
be valid against creditors unless the giver had sufficient property left to 



132 Marriage and Divorce 

pay the debts and a written and duly witnessed document has been pre- 
pared, in which the amount of the surpUis is stated. 

Par. 4. If the spouses have, without drawing up an agreement, agreed 
between themselves as to the transfer of property, such an agreement can 
not protect a spouse against creditors, unless it can be shown or bj' cir- 
cumstances inferred that the agreement was of a nature not requiring a 
written form to be valid. 

Par. 5. If a gift has been made, as in paragraph 2, and if it is not of 
the nature mentioned in the second part of the first section of the para- 
graph mentioned, and if a debt, which the donor owed when this gift was 
made, in accordance with paragraph 12, cannot be paid by him, the other 
spouse shall contribute to its payment to the value of the transferred prop- 
erty, unless he can prove that the donor had enough property left at the 
time to satisfy his debt. If compensation has been made, its amount shall 
be subtracted from the value of the transferred property. If the latter 
has been entirely or partly lost due to no fault of the receiver, he shall 
be correspondingly relieved of responsibility. 

If the donor has become bankrupt or has at the time of an execution 
been found incapable of paying his debts, or if he, being a merchant, has 
stopped payments, or if he is in other respects in such a precarious posi- 
tion that it may be feared that debts of the kind mentioned in the first 
section above cannot be paid in full, the other spouse shall be held re- 
sponsible for the debts to the amount mentioned in the above section, 
even though the financial condition of the donor may not be ascertained. 

If a suit is pending for the restitution of the gift to the donor's estate 
in bankruptcy, the responsibility of the recipient, according to this para- 
graph, shall not be asserted. 

Par. 6. If one spouse aids the other in the latter's business, he shall, 
even if no agreement as to compensation has been entered into, receive a 
reasonable pay for his labor, if it, in consideration of the nature of the 
work and other circumstances, shall be deemed just that compensation 
should be made. 

If a claim for the compensation of such labor has not been made be- 
fore the end of the calendar year following that during which the work 
was performed, the right to claim compensation shall be forfeited, unless 
there is an agreement to the contrary. 

Par. 7. If the property of a spouse has been given to the other for 
management and if the spouses have agreed, or if the circumstances indicate 
that their intentions were, that the manager should have the right to use 
the income thereof for the support of the family, the latter's word shall, 
in case of disagreement as to the amount used for that purpose, be taken 
unless circumstances indicate differently. 

If a spouse who has entrusted property to the other for management 
has agreed to relinquish his right to withdraw this property at his pleas- 
ure, such agreement shall not be binding. 

Par. 8. Agreements concerning the duty of a spouse to support the 
other, certain agreements concerning impending separation or dissolu- 
tion of the marriage, and ajgreements concerning separation of property or 
anything connected therewith, are dealt with in chapters 5, 11, and 13. 

Par. 9. Although still a minor, a betrothed or a spouse may make 
pre- or post-nuptial agreements. He should, however, get the consent of 
his guardian, unless it concerns the transfer of property, which he himself 
controls. 

The same shall be true of transfer of the nature referred to in para- 
graph 3. What said paragraph rules as to conditions making the transfer 



Legislation in Sweden 133 

valid against creditors, shall also apply to the consent of the guardian as 
to the transfer. 

Par. ID. Pre-nuptial or post-nuptial agreements shall be drawn up 
in written form by the spouses or the betrothed and shall be duly attested 
by witnesses. If the consent of the guardian is necessary, it shall be given 
as hereinbefore provided. 

Par. II. Such agreements shall be filed in the court in the place, 
where the husband should answer in suits against his person, or, if the 
husband is not duty bound to answer in such suits before a Swedish court, 
to the court before which his wife should answer in such suits. If no 
court of the nature stated exists, the agreement shall be filed in the Mag- 
istrate's Court in Stockholm. 

The court shall enter the agreement in its minutes and shall immedi- 
ately send a copy thereof to the authority in charge of the Marriage reg- 
istry together with information of the date the agreement was filed in 
the court. In cases referred to in paragraph 2, a notice of the filing 
shall also be published in the local and general newspapers. 

If the agreement does not contain complete information regarding 
the names, occupations, and residence of the spouses, the court shall call 
for such information and send it to the registry mentioned. 

If a certified copy of the agreement is not filed in the court, the court 
shall, at the expense of the applicant, prepare such a copy. 

Par. 12. If a prenuptial agreement has been made by the betrothed, 
it shall be valid from the day of the wedding, if it is filed in the court 
within a month, if in the city, or to the session following the month of 
the wedding at the latest, if in the country. In other cases the agreement 
shall be valid from the date of its filing in the court. 

CHAPTER 9. 

The Separation of Property 

Par. I. Upon application, a spouse may gain separation of the property 

1. if the other, through mismanagement of his financial affairs, 
through abuse of his right to control his marital property, or through 
other improper conduct causes a material decrease in his marital property 
or causes a danger of such decrease, and 

2. if the property of the other spouse has been surrendered to credi- 
tors. 

Par. 2. Husband and wife can also gain separation of property upon 
mutual agreement. 

Par. 3. All property acquired by a spouse after the petition for sep- 
aration of the property has been made, shall be his private property, if 
his petition is granted. 

Par. 4. When separation of the property has been granted, a division 
of the property shall take place and all property falling to the share of a 
spouse shall thereafter be his private property. 

Par. 5. Until the division of the property takes place, each spouse 
may, unless it is otherwise arranged according to paragraph 6, continue 
to manage the marital property, which belonged to him when the petition 
for separation was made. When the division takes place, the spouse shall 
be in duty bound to render an accounting of his management of this prop- 
erty and of the income accruing from it. 

Par. 6. If separation of property has been applied for and if, when 
the petition has been made by one spouse alone, sufficient cause is shown, 



134 Marriage and Divorce 

marital property, which the other may according to paragraph 5 control, 
shall, upon the petition of the former and if it is found necessary for the 
protection of his interests, to the value of what would be deemed the 
petitioner's share at the division of the property, be placed under special 
management until the petition for the separation of the property has been 
heard and, if it is granted, the property has been divided, or until the said 
petition has been refused. Such withdrawal shall, however, not be made 
if the other spouse objects and gives security, approved by the court, for 
the share, which would fall to the petitioner at the division. If separa- 
tion of property has been granted, either spouse may, according to what 
has just been said, demand that that marital property, which the other 
manages, be placed under special administration until the division has been 
made. 

When the above arrangement is made, more definite rules may also 
be given regarding the use of the property or its income for the support 
of the family or for other necessary expenses. 

Par. 7. Marital property, which a spouse, according to paragraph 5, 
has a right to cotnrol, may without hindrance from a pending petition for 
the separation of property or a court decree of such separation, be seized 
in payment for debts. If such property, according to paragraph 6, is 
placed under a special administrator, it shall not be seized unless the 
other spouse is jointly liable for the debt or unless the property, due to 
mortgage or other reason, is security for its payment. 

Par. 8. If the property of a spouse is surrendered to his creditors be- 
fore the division takes place, or if such division has been annulled on ac- 
count of the bankruptcy of a spouse, the marital property, which a spouse 
has the right to control, according to paragraph 5, shall be managed by 
the receiver until, by division of the property, it is decided how much shall 
fall to the share of the spouse. If it is found necessary, the receiver may 
sell the property without hindrance. 

In the case of bankruptcy, the rules in paragraph 6 are inapplicable. 

Par. 9. If during the suit for separation of property no inventory has 
been made of the husband's and the wife's assets and liabilities as they 
existed at the time the petition for separation of property was made, such 
an inventory- shall be prepared when the separation has been granted. This 
inventory shall be signed by the spouses under oath and a copy filed in the 
court or presented to the judge. 

If a copy of the inventor}' has not been filed within three months of 
the date the separation of property was decreed, the court or the judge 
shall appoint a magistrate, a sheriff, a tipstaff, or some other suitable per- 
son to make the inventory, in which case the spouse is required under 
oath to give honest information concerning his assets and liabilities. The 
appraiser must send a copy of the inventory to the court or to the judge. 

If separation of property has been applied for and if, in case the 
petition has been made by one spouse alone, sufficient cause is shown, the 
court or the judge shall, upon the petition of a spouse, order an inventory 
to be made in accordance with what has been previously stated in this 
paragraph. The appraiser shall present to both husband and wife copies 
of the inventory and shall also send a copy to the court or to the judge 
together with information as to the date when he presented the copies 
to the spouses. 

A spouse must, before the court and by oath, confirm the accuracy of 
the inventory, if the other demands it, or if the demand is made by a 
creditor, whose claim antedates the division of the property. 



Legislation in Sweden 135 

CHAPTER 10. 

The Annulment of the Marriage 

Par. I. If a marriage has been entered into in spite of impediments 
mentioned in chapter 2, paragraphs 7, 9, or 10, an annulment shall be de- 
creed. 

For impediments, mentioned in chapter 2, paragraph 10, no annulment 
shall be decreed, if the earlier marriage has been dissolved before a peti- 
tion for annulment was made. 

It is the duty of the public prosecutor to demand the annulment of a 
marriage. Either spouse, as well as the earlier spouse of the one who 
remarried, may institute proceedings for annulment in case of impediment 
mentioned in chapter 2, paragraph 10. 

Par. 2. If a spouse was, at the time of the marriage, insane or feeble- 
minded, the marriage may be annulled on his petition. If he has not made 
his petition within six months from the time his illness was cured, his 
right shall be forfeited. 

If the other did not, at the time of the wedding, know of the insanity 
or the feeblemindedness, he too may secure annulment, if he petitions for 
it within six months from the date he learned of it and not later than 
three years after the marriage. Annulment on the ground of insanity 
can not be pleaded, when the illness has been cured. 

Par. 3. A marriage can also be annulled upon the petition of a spouse, 

1. if he, at the time of the marriage, was momentarily out of his mind 
or in some other condition which precluded the possibility of legal re- 
sponsibility; 

2. if he by mistake was married to some other person than his be- 
trothed or did not desire to enter into marriage ; 

3. if unknown to him the other was, at the time of the marriage, suf- 
fering from epilepsy, mainly traceable to internal causes, venereal disease 
in an infectious stage, or leprosy, or was incurably disabled for marriage ; 

4. if he was deceived into marriage by false statements or fraudulent 
concealment by the other as to his identity or such circumstances af- 
fecting his earlier life, which would have been reasonably certain to deter 
the former from entering into the marriage. 

5. if he was forced into the marriage. 

Annulment can not be secured, unless the spouse petitions for it with- 
in six months from the time the condition mentioned in I ceased or he 
received knowledge of the reasons for annulment mentioned in 2, 3, or 4, 
or became free from the compulsion referred to in 5. No petition for 
annulment shall be considered if made more than three years after the 
marriage. 

Petition for annulment may not be made on the ground of venereal 
disease, if the spouse has not been infected or if the disease is no longer 
in the infectious stage, or on the ground of some other illness, after it has 
been cured. 

Par. 4. The effects of an annulment shall be the same as those pre- 
scribed in case of divorce, unless it is hereinafter otherwise provided. 

What has been stated in chapter 11, paragraph 20, for cases under 
consideration there, as to the preparation of an inventory of the assets 
and liabilities of each spouse and the confirmation by oath of such inven- 
tory, shall have corresponding application, when a suit for annulment is 
pending or when an annulment has been decreed. 

Par. 5. When a marriage has been annulled, property, which a spouse 
had at the time of the marriage or has acquired later through inheritance, 



136 Marriage and Divorce 

gift, or will, shall be considered as his private property, when a division 
of the property is made. 

Par. 6. If annulment takes place in accordance with paragraph one 
and it appears that one but not the other of the spouses was acting in good 
faith, the former shall have the right to damages, in accordance with what 
is proved reasonable considering the financial and other circumstances of 
the two. 

If a spouse secures annulment according to paragraph 2, section i, or 
paragraph 3, and if the circumstance leading to the annulment was, at 
the time of the marriage, known to the other, the one on whose petition 
the marriage is annulled, has a right to damages as has just been men- 
tioned. 

Damages may be ordered paid in a lump sum or in installments. 

A demand for damages shall, on pain of forfeiture of same, be made in 
the suit for annulment, unless it is merely a question of the adjustment 
of an agreement, which the spouses may have entered into in view of the 
annulment. 

Par. 7. After the annulment the spouses are no longer in duty bound 
to support each other. 

Par. 8. If a marriage is annulled according to paragraph one and the 
husband at the time of the marriage acted in good faith, but not the wife, 
or if the husband secures annulment according to paragraph 2, section one, 
or paragraph 3, and if the circumstance leading to the annulment was 
known to the wife at the time of the marriage, she shall, if the man so 
asks, be forbidden the future use of his name. 

Par. 9. If, by the death of a spouse, a marriage is dissolved, which 
should have been annulled according to paragraph one, the marital prop- 
erty shall be divided as if an annulment had taken place, if the demand is 
made not later than at the division of the property. 

The same holds if a marriage, which could be annulled according to 
paragraphs 2 or 3, is dissolved by death and the application of rules just 
mentioned is asked for by the surviving spouse, if he had a right to the 
annulment, or by some other part owner of the estate, if the deceased had 
such a right and had instituted proceedings for annulment or was until 
his death in the condition mentioned in paragraph 2 or in paragraph 3, 
section i. 

Par. 10. A surviving spouse, who at the time of the other's death, 
had a right to annulment, may receive damages according to regulations 
in paragraph 6 if he demands it before or at the division of the property. 

Par. II. If a marriage should have been annulled because of impedi- 
ment mentioned in chapter 2, paragraph 10, and the remarried one dies, 
right to compensation, pension, or other financial privilege, which is given 
to the surviving spouse, shall be regarded as belonging to the spouse of 
the earlier marriage, unless it otherwise appears from the circumstances. 

CHAPTER II. 
Separation and Divorce 

Par. I. Husband and wife, who, on account of deep and constant dis- 
cord, are unable to continue their marital existence, may secure a court 
order for separation upon mutual agreement. 

Par. 2. If a spouse is guilty of flagrant neglect of his duty to support 
the other and the children, or if he otherwise ignores his duties toward 
them in a palpable manner, or if he is addicted to the misuse of intoxi- 
cants or is leading a vicious life, the other may secure separation, unless 



Legislation in Sweden 137 

with regard to the latter's own behavior or other special circumstances it 
can be required that he continue the relationship. 

If due to a difference in temperament and ideas or to other reasons, 
a deep and lasting discord has arisen between the spouses, and if one of 
them desires separation, he shall be entitled to it unless, with regard to 
his own conduct or other special circumstances it can be reasonably re- 
quired that he continue the relationship. 

Par. 3. If the spouses, after having secured separation, have lived 
apart for a year and their marital relationship is not resumed, a decree 
of divorce can be issued upon the petition of either spouse. 

Par. 4. If husband and wife, without decree of separation, on account 
of discord have lived apart for three years, either may receive divorce. 
If only one of them desires it and, on account of his conduct or other 
special circumstances it is found that the marriage should not be dissolved 
upon his petition, a decree shall not be granted. 

Par. 5. If a spouse has wilfully and for no valid reason withdrawn 
from the marital relationship for two years and has not resumed it, the 
other has a ground for divorce. 

Par. 6. If a spouse is absent and it is not known that he has been alive 
for the last three years, the other may receive a divorce. 

Par. 7. If a spouse, contrary to chapter 2, paragraph 10, has remar- 
ried, the other may receive a divorce, if he petitions for it within six 
months from the date he learned of the new marriage. 

Par. 8. If a spouse commits adultery or other punishable fornication, 
the other has a right to a divorce unless he had part in the deed or gave 
his consent to it. He must institute proceedings, however, within six 
months from the date he learned of the deed and not later than three years 
from its occurrence or his right to so plead is forfeited. 

Par. 9. If a spouse, who is suffering from venereal disease in an in- 
fectious stage and knows or suspects his condition, has through cohabita- 
tion exposed the other to infection, the latter has a right to divorce unless 
he permitted the exposure with knowledge of the danger. No petition 
for divorce shall be granted, however, unless made within six months 
from the date the petitioner learned that he had been exposed to the 
danger of infection, nor shall it be granted if infection did not result and 
the disease is no longer in an infectious stage when the petition is made. 

Par. 10. If a spouse plots against the other's life or subjects him to 
severe physical maltreatment, the latter has a right to a divorce, if he 
petitions for it within six months from the date he learned of the matter 
and not later than three years after its occurrence. 

Par. II. If a spouse is sentenced to hard labor for three years or to 
some more severe punishment, the other has a right to divorce. 

If a spouse is sentenced to hard labor for a definite period shorter 
than three years or to prison or workhouse for at least one year, and the 
other asks for divorce, the court shall investigate whether or not a divorce 
should be granted, considering the prisoner's faults. This rule shall also 
hold in cases where a foreign court has imposed a one-year prison sen- 
tence on a spouse, as a result of which the other desires a divorce. 

A sentence for crime shall not constitute a ground for divorce for a 
petitioner who consented to the crime or acted as an accomplice. 

If a spouse desires a divorce on grounds mentioned in this paragraph, 
the petition must be made within six months after learning of the sentence 
and not later than three years from the date the sentence was imposed. 

Par. 12. If a spouse is an immoderate user of intoxicants, the other 
may get a divorce if the court finds special reasons to grant it. 

Par. 13. If a spouse is insane and the insanity has been continuous 



138 Marriage and Divorce 

for three j-ears of the marital life and there is no hope for permanent 
recovery, the other may he given a divorce. 

Par. 14. All property acquired by a spouse after separation has been 
granted is his private property. 

Par. 15. When separation has been decreed, division of the property 
shall take place and whatever property is then given to a spouse becomes 
his private property. 

Par. 16. Until a division of the property is made, each spouse may, 
unless otherwise stated in paragraph 17, continue to control the marital 
property he owned when the separation was granted. When the division 
is made, he shall be in duty bound to render an accounting of his manage- 
ment of this property and the income which it has yielded. 

Par. 17. If either spouse requests it and it is found necessary for the 
protection of his rights, marital property, which the other according to 
paragraph 16 has the right to control, shall, to the value corresponding 
to what is expected that the division of the property shall yield the peti- 
tioner, be placed under special management until the division has been 
made. This segregation shall not take place if the other objects and gives 
security, approved by the court, for such property, as may fall to the 
petitioner at the time of the division. 

When the above arrangement is made, more definite rules shall be 
given for the use of the property and its income for the support of the 
famih'' or for other necessary expenses. 

Par. 18. Marital property, which a spouse, according to paragraph 16, 
has a right to control, may, without hindrance from a separation decree, 
be seized for his debt. If such property is, according to paragraph 17, 
placed under special management, it may not, however, be thus seized 
unless the other spouse is jointly Uable for the payment of the debt or 
the property specially secures the payment of the debt, due to mortgage 
or other reason. 

Par. 19. If the property of a spouse is surrendered in bankruptcy 
before the division of the estate is made, or if the division has been an- 
nulled due to bankruptcy proceedings against the spouse, the marital 
property which, according to paragraph 16, may be controlled by the other, 
shall be managed by the receiver in the bankruptcy proceedings until, at 
the division of the property, it is decided what is to fall to his share. If 
it is found necessary, the receiver may sell the property without hindrance. 
If bankruptcy proceedings are instituted, disposition of the property, 
according to paragraph 17, shall be nullified. 

Par. 20. If during the separation proceedings no inventory has been 
made of the assets and liabilities of the spouses, such an inventory shall 
be prepared after the separation has been decreed. It shall be signed 
under oath by both spouses and a copy thereof given to the court or to 
the judge. 

If this copy has not been filed within three months from the date 
of the separation decree, the court or the judge shall appoint a magistrate, 
sheriff, tipstaff, or other suitable person to make the inventory, in which 
case the spouses are required under oath to gi\c honest information as to 
assets and liabilities. The appraiser shall send a copy of the inventory 
to the court or the judge. 

If a petition for separation has been made and if, in case the peti- 
tion is made by the spouse alone, it can be reasonably supported, the court 
or the judge may, upon the petition of one of the spouses, order an inven- 
tory made, according to provisions made earlier in this paragraph. The 
appraiser shall send a copy of the inventory to the court or to the judge. 
The spouse must under oath attest the accuracy of the inventory be- 



Legislation in Sweden 139 

fore the court, if the other demands it or if the demand is made by a 
creditor whose claim antedates the division of the estate. 

Far. 21. The provisions of paragraphs 15-20 shall not hold if neither 
spouse has any marital property due to separation of the property or to 
pre-nuptial or post-nuptial agreements. 

Par. 22. If a spouse gains separation according to paragraph 2, sec- 
tion one, and if the property due him at the division of the estate is slight, 
the court may, on his petition, authorize him to remove from the marital 
property, when the division is made, necessary household goods as well as 
tools and other chattels, which are needed for the continued pursuit of 
his occupation, even if by so doing the other's share may suffer shortage. 
What is here provided shall not be construed as encroaching upon the 
rights, which are due each spouse according to chapter 13, paragraph 4. 

Par. 2T,. The provisions of paragraphs 15-20 as to cases where the 
spouses have gained separation or where a petition for separation has been 
made, shall have corresponding appUcation when divorce has been decreed 
or a petition for divorce made, unless the spouses have no marital property 
due to pre-nuptial or post-nuptial agreements, separation of property, or 
separation. 

If a spouse gains separation on account of circumstances, which in- 
volve great wrongs inflicted by the other or on the ground of the latter's 
misuse of intoxicants, the provisions of paragraph 22 shall be correspond- 
ingly applied. 

Par. 24. If divorce is granted due to actions of a spouse by which he 
has seriously wronged the other, or after separation, obtained on the 
ground that a spouse has seriously neglected his duties toward the other, 
the latter shall be awarded reasonable damages in line with the financial 
condition of the spouses and other circumstances. 

Damages may be ordered paid in a lump sum or in installments. 

If demands for damages are not made during the divorce proceedings, 
the right to claim the same shall be forfeited unless it is merely a ques- 
tion of adjusting an agreement between the spouses entered into in view 
of the divorce. 

Par. 25. Even though divorce has been granted, it is incumbent upon 
a spouse to contribute to the other's support, on grounds stated in chapter 
5, paragraph 2. But if one of them is chiefly responsible for the divorce, 
the other shall not be in dutj' bound to give him support unless special cir- 
cumstances demand it. 

Par. 26. If a divorce has been granted and one of the spouses is later 
found to be in need of the necessities of life, the court may order the 
other to contribute to the former's support, according to his ability and 
other circumstances to be considered. Such contributory support shall 
not, however, be granted a spouse who was the chief cause of the divorce. 
If the financial and other circumstances of the one responsible for the 
support warrant it, the contribution may be set at a definite amount, which 
shall be paid by him at once. If the contribution is ordered paid at defi- 
nite intervals and the one entitled to it enters into a new marriage, no 
further payment need be made. 

The demand for contributory support for a divorced spouse shall be 
made in the divorce suit, or the right to claim same shall be forfeited, 
unless it is merely a question of adjusting agreements between the spouses 
made with reference to the divorce. 

Par. 27. In suits for divorce or separation, the duty of the court to 
decide which spouse shall be given the care of the children and how the 
contributions to their support shall be made is governed by the Law of 
Children in Marriage. 



140 Marriage and Divorce 

Par. 28. Without hindrance of what a court has previously decided in 
regard to contributive support for a spouse, the court may, on the peti- 
tion of either spouse, revise the arrangements if circumstances demand it. 
Contributive support for a divorced spouse shall, however, not be granted 
by the court, if the petition has once been refused, nor shall it be raised 
above a previously settled amount.* 

The provisions of this paragraph shall not be applied if a spouse has 
been obliged to pay at one time a definite amount for the support of his 
divorced spouse. 

Par. 29. If an agreement, which the spouses, in anticipation of the 
divorce or the separation, have entered into in regard to separation of 
property or anything connected therewith, damages, or contribution to 
the support of a spouse, is patently unjust to one of them, it may, unless 
made during the separation, be adjusted by the court on the petition of the 
injured spouse. On pain of forfeiting the right to claim, such petition 
shall be made before or in the divorce suit, if divorce is granted in accord- 
ance with paragraph 3, but otherwise within a year from the date of the 
divorce decree. 

Par. 30. If spouses, who have won separation, cohabit together again, 
the effect of the separation is lost, except as to matters discussed in para- 
graphs 14-20. 

Par. 31. After divorce, a wife may retain her husband's name or take 
her maiden name. 

CHAPTER 12. 
Certain Provisions with Reference to the Dissolution of a Marriage 

THROUGH THE DeATH OF A SpOUSE 

Par. I. upon the death of a spouse the property shall be divided un- 
less neither spouse has marital property due to pre- or post-nuptial agree- 
ment, separation of property, or separation. 

Par. 2. Unless the surviving spouse and the heirs of the deceased 
agree to the division of the property or the property of the deceased has 
been surrendered to the creditors, no division shall be made until all 
known debts of the deceased have been paid or means for their payment 
have been placed under a special administrator. 

Par. 3. Until the division of the property is made, the administration 
of the estate of the deceased shall be in the hands of the surviving spouse 
and the heirs of the deceased jointly, subject to what has been specially 
provided with reference to this administration. 

Par. 4. Unless it is otherwise provided in paragraph 5, the surviving 
spouse may control the marital property which belonged to him at the 
other's death. When the division is made, he shall be in duty bound to 
give an accounting of his management of this property and the income it 
has yielded. 

Par. 5. If the heirs of the deceased demand it and it is found neces- 
sary for the protection of their rights, marital property, which the sur- 
viving spouse may control according to paragraph 4, shall, to the value 
of the amount of such property which might be assumed to fall to the 
heirs at the division, be placed under special management until the divi- 
sion has been made. This shall not be done if the surviving spouse enters 
a protest and gives security, approved by the court, for the amount of the 
property, which should fall to the heirs at the division. 

*This last provision refers to condition in paragraph 26, when support 
has been granted once for all and paid in a lump sum. 



Legislation in Szveden 141 

When the above arrangement is made, more definite provisions may 
also be made regarding the use of the property or its income for the sup- 
port of the children and the surviving spouse or for other necessary ex- 
penses. 

Par. 6. Marital property, which a surviving spouse may control ac- 
cording to paragraph 4, may be seized for his debts regardless of the 
death of the other spouse. If such property has, according to paragraph 
5, been placed under special management, it shall not be seized for debts 
owed by the surviving spouse unless the deceased was jointly liable with 
him for the debt or the property was security for the payment of the debt 
by means of a mortgage or otherwise. 

Par. 7. If, before the division is made, the property of either spouse 
has been surrendered in bankruptcy or if the division has been annulled 
because of bankruptcy, marital property, which at the time of the death 
belonged to the debtor spouse, shall be managed by the receiver, until 
the division of the property has shown what shall be given to the estate 
in bankruptcy. If it is found necessary, the receiver may sell the property. 

The arrangement mentioned in paragraph 5 shall, in case of bank- 
ruptcy, be null and void. 

CHAPTER 13. 
The Division of the Property 

Par. I. Division of the property, which must take place as a result of 
separation of property, annulment of the marriage, separation, divorce, 
or the death of one spouse, shall be made in the manner prescribed in the 
Law of Inheritance regarding the Division of Inheritance, and also sub- 
ject to the provisions of this chapter. 

The provisions of this chapter with reference to a spouse, shall, in 
case he is dead, be applied to his heirs, unless otherwise stated. 

Par. 2. If a spouse owes a debt, which was incurred before the peti- 
tion for separation of property was made, before the annulment of the 
marriage, the separation, or the divorce was decreed, or, if division is 
made as a result of the death of a spouse, before said death, property 
shall be taken from the marital property of the debtor spouse and given 
to the other for the payment of the debt or for the payment of that share 
in the debt, which has fallen to him, in case the debt was jointly owed by 
the spouses. 

If the debt was made before the marriage and was, at the time of the 
marriage, secured by mortgage or in some other way by private property 
or property referred to in chapter 6, paragraph i, section 2, v.hich 
property does not enter into the division ; or, if a spouse has during the 
marriage incurred the debt due to mismanagement of his economic affairs 
or due to other improper conduct or for the increase or gain of property of 
the nature just mentioned, the allotment mentioned in section one of this 
paragraph shall be made only for that part of the debt, which cannot be 
satisfied with such property. 

Par. 3. When an allotment for debt has been made, according to 
paragraph 2, the remainder of the marital property of the spouses shall be 
equally divided between them, unless it is otherwise understood from 
chapter 6, paragraph 7; chapter 7, paragraphs 5 or 9; chapter 11, para- 
graph 22 or paragraph 23, section two; or, this chapter, paragraphs 4-12. 

Par. 4. Each spouse or, if one is dead, the survivor may have ex- 
empted from the division belongings, such as clothing and other things 
which are exclusively for his own personal use. This exempted propertv 



142 Marriage and Divorce 

must not be greater in value than may be considered reasonable con- 
sidering the status in life of the spouses. 

Par. 5. If a spouse has been given marital property to satisfy a debt, 
as mentioned in paragraph 2, section 2, the other may receive compensa- 
tion for it out of their marital property. 

Par. 6. If a spouse has by mismanagement of his economic affairs, 
by abusing his right to control his marital propert}', or by other improper 
conduct caused a considerable decrease in such property, the other may 
receive compensation out of his marital property. If this does not suffice 
and if the one responsible for the compensation has private property, 
compensation for half of the balance shall be made out of such private 
property not needed for the satisfaction of debts. 

Par. 7. A spouse shall also have a right to compensation, as men- 
tioned in paragraph 6, if the other has used his marital property for the 
gain or the increase of his own private property or of property referred to 
in chapter 6, paragraph one, section one, neither of which is affected by 
a division, or for the payment of debts incurred before the marriage and 
of the nature mentioned in paragraph 2, section two. 

Par. 8. A spouse, who has used his private property to increase his 
marital property, may receive compensation out of the latter. 

Par. 9. If compensation due a spouse can not be paid in full, he can 
not demand the balance from the other. 

Par. 10. Damages which, according to chapter 10, paragraphs 6 or 10 
or chapter 11, paragraph 24, are due a spouse shall, if the payment is past 
due, be paid at the division of the property out of the other's share over 
and above the property needed to pay debts encumbering it. The same 
rule shall hold in case of past due contributions for support, which shall 
be paid by a spouse to the other at one time, according to chapter 11, 
paragraph 26. 

Par. II. If the spouses are jointly liable for a debt of the nature re- 
ferred to in paragraph 2, each may demand that the other pay the part of 
the debt which falls to his share, unless security for its payment is given. 
If that is not done and if the one, who demanded it, desires it and gives 
security for the payment of the debt, property to satisfy that part of the 
debt shall, at the division of the estate, be allotted to him from the other's 
share over and above property needed to satisfy other debts. In such 
case, the former shall be alone liable for the payment of the debt in ques- 
tion. 

Par. 12. If division of the property occurs as a result of the death of 
a spouse and the property falling to the lot of the survivor is slight, he 
may withdraw, from the marital property of the spouses, necessary house- 
hold goods, tools, and chattels needed for the pursuit of his occupation. 
This he can do, even though the share of the heirs may suffer a decrease 
thereby. 

Par. 13. When the division is made, each spouse or, if one is dead, 
the survivor has the right to receive in his share the work tools and other 
chattels needed for the pursuit of his occupation. In addition, each 
spouse is entitled to receive in his share whatever property he desires, 
if this property is part of his marital property. Real estate belonging to 
the marital property of a spouse, as well as other propert.v belonging to 
his marital property, shall be given to him if he so desires. This may be 
done even though the property may exceed in value the share due him as 
long as he substitutes for it money to complete the other's share. 

If the private property of a spouse is to be used to pay compensa- 
tion, as stated in paragraphs 6 or 7, the compensation shall be paid in prop- 
erty which the payer may designate. 



Legislation in Szvcdcn 143 

The right mentioned in the last part of section one shall not, if a 
spouse is dead, belong to any one but direct heirs and even so only with 
reference to real estate which the deceased has acquired from a relative 
in lineal ascent or descent or from the estate of a deceased relative in 
lineal ascent or descent. 

Par. 14. If, at the division of the property, a spouse has relinquished 
what would fall to his share, according to this chapter, and cannot pay 
a debt incurred before the division, the other shall be liable for its pay- 
ment to the amount of the surplus he has received unless he can prove 
that the debtor spouse had enough property left after the division to 
satisfy his debt. If the spouse, who relinquished his right, has been de- 
clared bankrupt or has, in an execution, been found to lack funds to pay 
his debt; or, if he, being a merchant, has stopped payments; or, if he is 
found to be in such a precarious position that it may be assumed that a 
debt of the nature mentioned in the first sentence will not be paid, the 
other spouse shall be liable for the debt to the value mentioned in that 
sentence, even though the former's condition is not clearly ascertained. 

If division of the property has been made between a spouse and the 
other's heirs and if the latter have received too much, they shall be jointly 
responsible for repayment, as explained in the previous section. 

The provisions of this paragraph shall not be applied with reference 
to debts for which the deceased spouse was liable, if division takes place 
following his death. 

Par. 15. When division of property has been made, the spouse shall 
present to the court the document prepared. A report of the matter, with 
the date of the presentation shall also be made immediately to the Mar- 
riage Registry and a notice inserted in the general and local newspapers. 
If a spouse has, at the division of the property, relinquished his rights to 
an extra-ordinary degree and if his property is surrendered to his credi- 
tors as a result of a petition made within a year from the presentation of 
the document above mentioned to the court, the division shall be annulled 
in accordance with the Bankruptcy Law, if the creditors demand it. 

The provision in the second part of the above section shall not apply, 
when a spouse is dead and the relinquishment has been made by his heirs. 

CHAPTER 14. 

Mediation Between Husband and Wife 

Par. I. In cases referred to in chapter li, paragraph 2, section one; 
or, if discord has in other ways arisen between husband and v.'ife; or, if 
there arises between them a quarrel regarding the duty of support or about 
questions referred to in chapter 8, paragraphs 6 or 7, a spouse has the 
right to ask for mediation by the minister of the parish wherein either 
spouse is registered, by a minister of a congregation which has a right 
to public worship and to which either spouse belongs, by a person, who 
on petition has been appointed by the county judge or the president judge 
of the municipal court in the place wherein both or one of the spouses 
resides, or by a person, referred to in paragraph 2, who has been appointed 
to act as mediator in domestic difficulties in the community wherein one 
or both reside. 

Par. 2. If the community has decided to appoint mediators in domes- 
tic difficulties, or if a need for such mediators becomes apparent, the 
parish council in the country-side, the Governor General of Stockholm, 
and the Board of Magistrates in other cities, or the city government, 
where no magistrates are found, shall appoint as mediators at least one 



144 Marriage and Divorce 

man and one woman. Mediators shall be appointed for two calendar 
years. If a mediator resigns before his term expires, another shall be 
appointed to fill the vacancy. 

Par. 3. A mediator has the right to summon the spouses to appear 
before him. In a suitable manner he shall try to discover the cause of the 
dissension or the quarrel and try to effect reconciliation. 

CHAPTER 15. 

Certain Provisions Regarding Court Procedure 
Marriage Suits 

Par. I. A marriage suit is a suit arising out of a dispute as to whether 
or not a man and a woman are really married, or a suit for annulment, 
separation, or divorce. 

Par. 2. The question of whether or not two persons are actually 
married shall not be the subject of a special suit unless a dispute arises 
between them regarding the matter. Whenever any one's right is affected 
by a settlement of this question, it may be investigated. 

Par. 3. In marriage suits, a feebleminded or an insane person shall 
be represented by his guardian. 

Par. 4. Marriage suits shall be brought in the court of the place, 
wherein the defendant resides. If he does not reside within the Kingdom, 
the court of the place wherein the man and woman last had their resi- 
dence together or, if they have had no joint residence in the Kingdom, 
wherein the plaintiff resides, shall have jurisdiction. If the suit is brought 
against the man and woman jointly, the court of the place wherein both 
or either lives, or, if neither lives in the Kingdom, where their last joint 
residence in the Kingdom was , shall have jurisdiction. If no court, in ac- 
cordance with the above, has jurisdiction, the Magistrates' Court in Stock- 
holm shall hear the case. 

If both spouses desire separation, according to chapter 11, paragraph 
one, or divorce, according to chapter il, paragraphs 3 or 4, they shall 
petition the court, which in accordance with the first section has jurisdic- 
tion in suits against them jointly. 

A suit for annulment or divorce on the ground of a crime, for which 
conviction has been sought, may also be brought in the court, where the 
criminal suit is pending. 

Par. 5. If the defendant has no known residence in the Kingdom and 
if no information of his whereabouts has been found, the summons may 
be served in the manner specified in chapter 11, paragraph 9, section two 
of the Law of Court Procedure, even though the situation is not one re- 
ferred to in that paragraph. 

This shall not apply, if the defendant has given notice in accordance 
with the provisions made in sections three and four of said paragraph. 

Par. 6. If either party to the marriage suit desires it, the court may 
order the hearing to be held behind closed doors. 

Par. 7. If a defendant, upon being properly summoned, remains away 
without showing legal cause, the court may, nevertheless decide the case. 
If the suit is thus decided, the provisions of the Law of Court Procedure, 
chapter 12, paragraphs 3-4, regarding rehearing shall in no case be applied. 

Par. 8. A suit for separation, according to chapter II, paragraph one, 
shall not be heard until it has been shown that mediation has taken place 
in accordance with chapter 14. 

A suit for separation, according to chapter 11, paragraph 2, shall not 



Legislation in Sweden 145 

be heard unless it is shown that mediation has taken place, that the de- 
fendant upon being summoned has failed to appear for mediation, or 
that he could not be located. If the suit is to be heard although media- 
tion has not taken place and the court finds that opportunity for mediation 
should be provided, the hearing shall be postponed and a suitable person 
appointed by the court as mediator with powers as provided in chapter 14, 
paragraph 3. If a spouse fails to answer a summons to appear before this 
mediator or if, for some other reason, mediation has not taken place be- 
fore the date of the postponed hearing, no further postponement shall be 
made unless both spouses desire it. 

Par. 9. The court is responsible for a complete investigation and may 
for that purpose secure necessary evidence. The mere admission of a 
circumstance by a party shall not be valid unless supported by other evi- 
dence. No oath shall be administered. 

That which is here stated shall not be applied to special matters, in 
connection with the main case, regarding which the spouses can enter 
agreements. 

If the court has summoned a party to appear in person and he fails 
to do so, he may be taken into court, if it is found suitable. 

If the court has subpoenaed a person as witness, the provisions of the 
Criminal Law shall hold, as to the compensation of witnesses from public 
funds and its repayment in suitable parts. 

Par. 10. Annulment or divorce shall not be granted on the ground of 
insanity or feeblemindedness unless a medical certificate regarding the ill- 
ness has been presented. The King is empowered to prescribe further 
regulations regarding this certificate. 

Par. II. In suits for annulment, separation, or divorce, the court may, 
on petition of either spouse and in accordance with what is found reason- 
able, declare that, until a decree with full legal power is issued, the 
spouses shall live apart. The court may also order a spouse to contribute 
to the other's support in the meanwhile and may forbid them to visit each 
other on pain of imprisonment or a fine. 

When bidding the spouses to live apart, the court may decide which 
spouse shall remain in the home. The one chosen is allowed to retain 
and use the other's chattels, which form a part of the household goods, 
unless the court makes other arrangements. Such decision shall remain 
in force until the division of the property takes place, in case a decree of 
annulment, separation, or divorce is issued. The provisions of chapter 
5, paragraph 8, shall hold as to the right to use property belonging to a 
spouse, when the other has received such property, according to what has 
just been said. 

If the writ has been served in the country (i. e. the countryside) but 
the suit has not come before the court, the judge may issue the above 
mentioned order on the plaintiff's petition. Before this order is issued, 
the defendant shall be given an opportunity to be heard on the petition. 
If the order has been given, the court shall, at the first opportunity during 
the hearing of the case, take the continuation of the order under consid- 
eration. 

The decision mentioned in this paragraph shall have the same legal 
effect as a court decree but it can at any time be rescinded by the court. 

Par. 12. When a separation decree is issued, the court may on the 
petition of a spouse make the prohibition mentioned in paragraph 11, sec- 
tion one, for any period of time found advisable. 

Par. 13. If, in annulment, separation, or divorce suits, it is found 
that the consideration of special problems arising in connection with the 



146 Marriage and Divorce 

main question will lead to a considerable extension of time, the court may, 
on the demand of either party to the suit, take up the rest of the case for 
final decision. 

Par. 14. In the lower court a record shall be kept of all separation 
suits pending there, setting forth the measures taken and all court deci- 
sions affecting the estate in each separate suit. 

When separation has been granted, a notice shall immediately be sent 
to the Marriage Registry. 

Separation of Property Suits 

Par. 15. A petition for the separation of property shall be made in 
writing to the court in the town or to the judge of the country district 
where the man should answer in all disputes regarding his person or, if 
the man is not in duty bound to appear in such suits before a Swedish 
court, to the court or to the judge, before whom the woman should ap- 
pear in such suits. If no court with jurisdiction exists, according to what 
has just been said, the suit shall be heard in the Magistrates' Court in 
Stockholm. 

If there is no court day in the town and if there is no one appointed 
by the court to receive petitions in its name, the petitions may be given to 
the president of the court. 

Par. 16. If the court or the judge finds that a petition for separation 
of property can not be considered because it is directed to the wrong 
court, or for some other reason, this decision shall be noted on the peti- 
tion. 

Par. 17. If the petition has been made by both spouses and there is 
no hindrance to its consideration, the court or the judge shall immediately 
render the decision of separation of property, unless a postponement is 
made in accordance with paragraph 20. 

Par. 18. If the petition for separation of property is made by one 
spouse alone, the court or the judge shall note on the petition a summons 
to the spouses to appear before the court within eight days, if in the town, 
and, if in the country, on a specified day of the current or next ordinary 
session of the court or of the special session, if that is asked. 

The petitioner shall take care that the other is informed of the sum- 
mons. If the latter is absent on the day set for the hearing and it is not 
shown that he was informed of the summons early enough to enable him 
to be present, or if hindrance has prevented the communication of the 
information mentioned, the petition shall be void. If several attempts 
have been made to give the latter spouse a notice of the summons in his 
home and if neither he nor his agent has been found or any information 
gained as to his whereabouts, the court shall set a date for a further 
hearing in the matter and shall urge the spouse to appear before the 
court by inserting a notice in the general newspapers three times, the 
last time at least one month before the date set for the hearing. 

If the spouse does not present himself, when the summons has been 
served in due order, the suit for separation of property shall nevertheless 
be taken up for final consideration. 

Par. 19. If, in the country, a spouse, who is to be heard on the peti- 
tion, has given the judge written assent to it, the judge shall immediately 
decree the separation of the property unless postponement is made, ac- 
cording to paragraph 20. In such cases the matter need not be taken to 
court. 

Par. 20. If a spouse, who has petitioned for separation of the property, 
has demanded an inventory of the property, according to chapter 9, para- 



Legislation in Sweden 147 

graph 9, before the petition has been granted, and if the petitioner has 
asked that the decree be postponed until he has had time to read the in-, 
ventorj', the petition shall not be granted until a month after the inventory 
was presented to the spouses, unless the petitioner presses his demands 
before that time. 

Par. 21. When a petition for separation of property has been made 
and also when it has been granted, a notice shall, through the court or 
the judge, be inserted in the general and the local newspapers and infor- 
mation thereof sent to the Marriage Registry. 

Par. 22. At each lower court a record shall be kept of all separation 
of property cases pending there, giving in each case the day of petition, 
all measures taken and decisions rendered by the court or by the judge. 

Special Stipulations Regarding Certain Other Suits 

Par. 22,. What has been provided in paragraph eight, section two, re- 
garding separation suits, according to chapter ii, paragraph 2, shall also 
be applied in suits between spouses regarding duty of support, unless they 
live apart due to dissension, and in suits between them regarding matters 
referred to in chapter 8, paragraphs 6 or 7. 

Par. 24. If a spouse has urged that the other be made to contribute 
to the former's support in accordance with chapter 5, paragraphs 5 or 7, 
or if, when separation or divorce has been decreed, a spouse has urged 
that the other be made to contribute to the former's support in accordance 
with chapter li, paragraphs 25 or 26, the court may, on the petition of the 
plaintiff, rule that the defendant shall make reasonable contribution until 
a decree with full legal power is issued. 

The court may at any time revoke this order. 

Par. 25. If a spouse has, according to chapter 5, paragraph 8, de- 
manded that the other deliver for the petitioner's use necessary chattels, 
the court may, on the plaintiff's petition, order that it be done until a de- 
cree with full legal power has been issued. 

The court may at any time revoke an order of this nature. 

Par. 26. If, in the country, a writ has been served in a matter referred 
to in paragraphs 24 or 25, and the suit has not yet been heard in court, 
the judge may, on the plaintiff's petition issue the order referred to in the 
paragraphs mentioned to hold until a decree with full legal power has 
been issued. 

Before the order is issued, the defendant shall be given an opportun- 
ity to be heard on the plaintiff's petition. 

If the order has been issued, the court shall at its earliest opportun- 
ity during the hearing of the case, consider the advisability of continuing 
the order in force. 

The court may even later revoke the order at any time. 

Par. 27. The order referred to in paragraphs 24, 25, or 26, shall have 
legal power equal to that of a court decree. 

Par. 28. If a spouse or his heir wants property placed under special 
control, according to what is stated in chapter 9, paragraph 6, chapter 11, 
paragraphs 17 or 2},, or chapter 12, paragraph 5, he shall petition the court. 
If, in the country, such a petition has been made to the judge, he may, 
upon the petitioner's demand, issue an order which shall have legal power 
until the court takes the matter under consideration, when the case comes 
up for decision. 

Before such an order is issued, the other spouse shall, through the 
efforts of the court or the judge, be giv^en an opportunity to be heard on 
the petition. 



148 Marriage and Divorce 

In spite of objections made, the order shall go into effect, unless the 
Appellate Court issues a restraining writ. 

Par. 29. A measure, which a country judge is called upon to take, ac- 
cording to chapter 9, paragraph 9, chapter 11, paragraphs 20 or 23, or this 
chapter, paragraphs 16-19, or paragraph 28, section 2, may be taken by 
him even though he is legally disqualified. In such case, however, he 
shall immediately inform the Appellate Court of his incompetency, if the 
appointment of a special judge is necessary. 

Par. 30. Complaint as to the final decree in suits discussed in this 
chapter, shall be made in the nature of an appeal, even though the suit 
may be one, which must be instituted by a writ. 

Par. 31. If a party is dissatisfied with the decision rendered by the 
court in questions referred to in chapter 9, paragraphs 6 or 9, chapter li, 
paragraphs 20 or 23, or this chapter, paragraphs 11, 24-26, a special appeal 
may be taken. 

Par. 32. If a country judge has issued an order, which he is author- 
ized to do, according to this act, appeal may be made to the Appellate 
Court. The time given for the filing of an appeal shall be computed from 
the date the petitioner received knowledge of the order. 

Par. 32. The decision of the Appellate Court in questions referred to 
in paragraphs 31 or 2^ cannot be appealed. 

CHAPTER 16. 

General Rules 

Par. I. When, according to this act, time is to be counted in months 
and years, that day shall be considered the final day, which by its number 
corresponds to the day from which the time is counted. If there is no 
corresponding day in the final month, the last day of that month shall be 
considered the final day. 

Par. 2. Records of entrance into marriage and dissolution of mar- 
riage shall be made in the Parish register, according to stipulations made 
by the King. 

Par. 3. A central authority for the whole Kingdom shall have charge 
of the Marriage Registry, for the recording of the information, which, 
according to this law, shall be reported for registration or for the record- 
ing of any information hereafter ordered reported for this purpose. 

Par. 4. A collection of the information recorded in the Marriage 
Registry shall be printed by the government periodically and supplied 
with an annual index. 

As the collection comes from the press it shall be sent to every court 
and local administrator of justice, where it shall be available to the public. 

Par. 5. More definite rules regarding the conduct of the Marriage 
Registry and the collection mentioned in paragraph 4 shall be made by 
the King. 

Par. 6. As to certain international questions regarding marriage, 
special rules have been prepared. 

June II, 1920. 



( U U I vJOt 



U. C. BERKELEY LIBRARIES 




CD^7flSSb3D 



RETURN TO the circulation desk of any 
University of California Library 

or to the 

NORTHERN REGIONAL LIBRARY FACILITY 
Bldg. 400, Richmond Field Station 
University of California 
Richmond, CA 94804-4698 

ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 

• 2-month loans may be renewed by calling 
(510)642-6753 

• 1-year loans may be recharged by bringing 
books to NRLF 

• Renewals and recharges may be made 
4 days prior to due date 

DUE AS STAMPED BELOW 



O CT 1 1 2 002 



DD20 15M 4-02 



1 



Si